Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000762

First-tier Tribunal No: PA/59651/2023
LP/06250/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3rd of June 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

NR
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Ferrin, Counsel, instructed by Leonard Solicitors LLP
For the Respondent: Ms Tariq, Senior Home Office Presenting Officer

Heard at Field House on 15 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 the appellant. Failure to comply with this order could amount to a contempt of court.

AMENDED DECISION AND REASONS

1. The appellant is an Afghan national who appeals, with permission, the decision of the First-tier Tribunal dated 21st of November 2024 in which a judge of the First-tier Tribunal (“the judge”) dismissed the appellant’s appeal against the respondent’s refusal of his protection and human rights claims.

Summary of the Issues and this Decision

2. The challenge to the judge’s decision centres on the respondent’s reliance in the refusal letter on information provided by the appellant on the ‘Unaccompanied child welfare form’ (“the welfare form”) dated 17 November 2022 which was completed at an interview with the appellant who was 16 years of age at the time. The issue in the appeal was whether or not the judge made an error on a point of law by dismissing the appellant’s asylum claim having also relied on inconsistencies between the welfare form and a later account the appellant gave. The appellant’s position was that, in relying on that information and using it to assess the appellant’s asylum claim, the respondent breached her own published policy “Children’s asylum claims Version 4.0 dated 31 December 2020” (“the policy”). The respondent opposed the appeal. Having considered the 270 page error of law bundle (“HB”), Ms Ferrin’s skeleton argument and heard submissions from both representatives, and for the reasons I set out below, I am satisfied the judge did fall into error as a result of which the decision is to be set aside. Ms Ferrin invited me to issue guidance on the policy and the Tribunal’s approach when confronted with a situation in which the respondent relies on information contained in the welfare form as part of the assessment of the appellant’s asylum claim. I deal with directions for disposal later in this decision.

The Refusal Letter

3. The respondent’s decision was made on 12 October 2023 and it refused the appellant’s protection and human rights claim. The respondent noted that the appellant claimed to be at risk in Afghanistan following the Taliban seizing power in 2021, in part due to his brother having been a police officer there. The respondent set out the evidence considered to decide the appellant’s asylum claim and one of the documents listed was the welfare form. When considering the appellant’s credibility the respondent considered the appellant was inconsistent “regarding your brother’s job, including the rank, where he worked, and the date and circumstances surrounding his death” and relied (in part) on the welfare form, the appellant’s witness statement and certain questions he answered in his substantive asylum interview to support this findings.

The Decision of the First-tier Tribunal

4. The impugned sections of the judge’s decision are contained at paragraphs [31]-[35] which say as follows:

“31. Firstly, there is a material inconsistency in the appellant’s account of what happened to his brother, as between his first account and the account maintained at interview and before me.

32. I have before me the appellant’s Unaccompanied Child Welfare Form completed on 17th November 2022 (when the appellant was 16) at the Kent Intake Unit. He explained that he came to the UK because ‘I have problems in Afghanistan as one of my brothers was working for the previous Government then the Taliban took over. The Taliban came to our house and took my brother away and we have never heard from him again. I would like to claim asylum in the U.K’.

[Emphasis added]

33. In interview the appellant stated that his brother was fighting the Taliban ‘before
they entered the city’. ‘It was not captured at that time, he was fighting to stop it, but my brother was killed in that war. I don’t know exactly when this was.’

34. As will be obvious, these two accounts are significantly different. Ms Ferrin submitted that it would not be reasonable to rely on the answer in the Welfare form without the appellant having opportunity to revisit it. In this case however he was given such opportunity when asked about the issue in cross-examination. He stated ‘When I arrived in the UK I did not have a phone and I was interviewed over the phone and I was asked about my brother and I said the truth that I don’t know about the whereabouts of my brother. Later when I contacted my family my parents told me that when you were here your brother was fighting the Taliban and during the fighting against the Taliban he was killed so at that point later I said the truth.’

35. I am not satisfied that the appellant’s inconsistency can properly be explained either by language issues or by the limitations of the initial contact. Nor do I accept the appellant’s explanation in evidence. The appellant gave a positive initial account of what had happened to his brother, stating that ‘the Taliban came to our house and took my brother away’. That evidence is not maintained, nor has any reason been given which could explain why that account was advanced. The inconsistency goes to the heart of the appellant’s claim. Ms Ferrin relied upon Home Office guidance which suggests that the contents of welfare forms should not be used to examine the basis of a claim however I reminded her that I am not bound by such guidance. She was unable to point to any case law establishing the same principle. In my view, on the particular
facts of this case, it is reasonable that I take into account this material inconsistency. I find that it weighs heavily against the appellant’s credibility.”

5. There were other factors which the judge found consistent [36] and other which the judge decided were not as determinative on credibility, but which fell short of supporting the appellant’s claim [37]-[39]. She also rejected some of the respondent’s challenge to the appellant’s account [40]. Overall, the judge concluded at [41] that she was satisfied the appellant’s father made arrangements for him to flee Afghanistan once the Taliban took over as he wanted him to have a better life but she was not satisfied his brother was a police officer or that he was genuinely in fear as he claimed. Accordingly she dismissed his appeal on asylum grounds although stated at [42] that she would have allowed it if the appellant had been found credible (and that accorded with concessions the respondent made at the FtT hearing and which Ms Tariq confirmed before me).

The Policy

6. Page 31 of the policy contains a section headed “Welfare form”. Due to its relevance to the issues in dispute, I set it out in full:

“Once any immediate welfare concerns have been addressed, the welfare form (ASL.5097) must be completed. If fingerprints are not being taken at the same time as the welfare interview or fingerprints are being taken but the child is not under 16 years of age, it is not necessary to have a responsible adult present, but if one is present they may attend. If, however, fingerprints are also being taken from a child under 16 years of age, a responsible adult must be present.

The purpose of the welfare form is to obtain information that is necessary for a meaningful booking-in process, including bio data and information relating to the child’s needs and welfare concerns.

It cannot be used to examine the basis of the claim for asylum.

Paragraph 352 of the Immigration Rules states that a parent, guardian, representative or another adult who is independent of the Secretary of State and who has responsibility for the child must be present when an unaccompanied child is interviewed about the substance of their claim. Therefore a child must not be asked to explain or elaborate on why they are afraid to return to their home country when completing the welfare form. Home Office staff must take particular care to ensure that questioning does not go beyond inviting a response to the questions on the form. The child must be informed that they will have an opportunity to explain these details at a later date.

It may be that details or information relating to the substance of their asylum claim are nevertheless volunteered by an unaccompanied child on initial encounter or while the welfare form is being completed. Although this information can be recorded on the welfare form, asylum decision makers must never rely on information obtained from an interview where no responsible adult or legal representative is present unless this information has also been explored and raised with the claimant during the substantive asylum interview in the presence of a responsible adult or legal representative. The child must be given an opportunity to explain any related issues or inconsistencies.

If the child provides any information that raises concern, for example about trafficking
or exploitation issues, reference must be made to a senior manager (minimum SEO or HMI). If the child has been identified as a potential victim of trafficking they should be referred to the National Referral Mechanism (NRM). If located in one of the Early Adopter Sites (Greater Manchester, Hampshire and the Isle of Wight and Wales) the
child must also be referred to an Independent Child Trafficking Advocate. If the information relates to criminal activity, the officer must contact the police as a matter of urgency.

A copy of the welfare form must be given to the social worker and the original form
placed on the child’s file.

Home Office staff completing the welfare form must ensure that the child is referred
to the Refugee Council Panel of Advisers: Children’s Panel. If it has not been done,
or if it is not apparent that it has been done, a referral must be made immediately.”

[My emphasis]

The Position of the Parties

7. It is not in dispute that when the appellant was interviewed for the purposes of the welfare form on 17 November 2022 he did not have the benefit of an appropriate adult or legal representation. It was accepted at the hearing that the welfare form is the same used for all unaccompanied children when encountered and before it is known whether or not they are claiming asylum. It is not in dispute that the appellant was not sent a copy of the welfare form after its completion. Accordingly no checks could be made of its accuracy (unlike the position with the asylum interview)

8. Ms Tariq also accepted that, at the appellant’s substantive asylum interview on 13 September 2023, the welfare form was not expressly mentioned and neither was the appellant asked expressly about anything he said in the welfare form, including any information he reportedly said therein which was inconsistent with anything he later said in his asylum interview. By the time of that interview the appellant was 17 years old and he was legally represented and was accompanied by a responsible adult (a social worker/key worker [HB81]).

9. As was set out at [34] -[35] of the judge’s decision, the appellant raised at the hearing before the FtT the claim that the respondent breached the policy by relying on the content of the welfare form in assessing the appellant’s asylum claim. Ms Ferrin accepted that the issue was not raised in advance of the hearing before the FtT including in the appellant’s skeleton argument. This was a factor on which Ms Tariq relied at the hearing before this Tribunal, namely that the appellant’s failure to raise the issue in advance of the hearing represented a breach of the principles set out in Lata (FtT: principal controversial issues) [2023] UKUT 00163.

10. In response, Ms Ferrin argued that it was for the respondent to ensure she acted in compliance with her own published policy (BH (policies/ information: SOS’ duties) Iraq [2020] UKUT 189 (IAC)) and that the appellant had a legitimate expectation she would do so (R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545 and R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363). She submitted that the terms of the policy were unequivocal, particularly the section which said “it cannot be used to examine the basis of the claim for asylum”, which is in mandatory terms. She further submitted that the prohibition in the policy on using the content of the welfare form when assessing any subsequent asylum claim was reinforced on the welfare form itself which sets out the what the content of the initial conversation with the child is to include. That includes the following:

“If the child is claiming asylum, make it clear to that detailed questions about their journey, the reasons they have come to this country and/or their request to live in this country will be asked at another interview/meeting [HB168]
….
You should also explain that the answers they give will not be used later as part of their asylum claim [HB170]”.

11. Ms Tariq submitted the appellant’s reading of the policy was misconceived and the policy did not represent a complete prohibition on using any information gathered in the welfare form in the subsequent asylum claim assessment. She argued that the section italicised at [6] above allows for the voluntary provision of information about the basis of an asylum claim and that, providing that is later explored in the correct forum with the appropriate safeguards, namely the substantive asylum interview, there is no breach of the policy. Ms Tariq relied on questions 52-55 and 60-62 of the interview to submit that the appellant was asked about the circumstances of his claim and in particular about his brother’s role as a police officer.

12. When I asked Ms Tariq whether or not she accepted that the appellant was never asked about claimed inconsistencies as between the welfare form and his answers in interview, she accepted he was not. However, she argued that the questions he was asked were sufficient to explore the issue and the basis of his claim and that the inconsistencies were put to him in interview.

13. As far as the judge’s role is concerned, Ms Ferrin submitted the judge should have decided that little or no weight could attach to the inconsistency when that inconsistency only emerged from the respondent breaching her own policy (AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12 [51]) particularly given the appellant’s particular presentation and circumstances at the time of completion of the welfare form.

Discussion

14. There is no doubt that the issue regarding the respondent’s alleged breach of the policy could and probably should have been expressly raised earlier than at the hearing before the judge as Ms Tariq submitted. Lata makes it clear that the parties are under a duty to identify to the Tribunal the issues to be determined (headnotes (1)-(3)).

15. However, headnotes (7)-(8) of Lata say:

“7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.

8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.”

16. Accordingly, in my judgement, Lata is not authority for the proposition that if an issue is identified at the hearing before the judge, but not at all prior to that, that party is prohibited from relying on the judge’s failure to deal with or inadequate treatment of the issue on appeal to the Upper Tribunal as appeared to be Ms Tariq’s submission.

17. In any event, the appellant also argues that it is for the respondent to ensure that her policies are followed and to draw any relevant policy to the attention of the Tribunal (BH applies). Although the respondent’s alleged breach was not mentioned in the Appellant’s Skeleton Argument (“ASA”) prepared for the FtT, reference was made to the lack of inconsistency in his account and to his particular circumstances when being interviewed including his age and educational level (ASA paras 23-28). Furthermore, in his appeal witness statement prepared for the FtT, the appellant said he was injured on arrival into the UK (para. 21) and he sought to address the reason why he was sent away from Afghanistan, addressing the inconsistency about whether or not by then his brother had been killed (paras. 31 and 33).

18. In my judgement, this was sufficient information for the respondent to have realised that the policy was material to the hearing and the policy should have been drawn to the judge’s attention.

19. Nevertheless, by the time of the hearing, the judge was patently aware of the existence of the policy. It is clear from [35] of the judge’s decision that she was told the appellant was claiming the respondent had breached the policy. She observed that she was not provided with authority that the policy applied to the Tribunal such that she could not rely on the content of the welfare form. It is further clear from [34] that the judge was aware that the policy required the child to be given an opportunity to explain any inconsistencies and the judge decided that he had that opportunity during cross-examination.

20. The only reason the judge was aware of the content of the welfare form was because the respondent had relied on it when assessing the appellant’s asylum claim. Had the respondent not done so, the judge would have been left with the rest of the appellant’s evidence about his brother which, according to the judge, was consistent [36] but lacking in detail [37]. The judge said at [37]:

“that lack of detail is not undermining per se however nor is the appellant’s consistency in this regard sufficiently persuasive to counter the concerns introduced by the material inconsistency outlined above”.

21. Given the significance of what the judge describes as the ‘material inconsistency’ to the appeal, it was, in my judgement, incumbent on the judge to evaluate that evidence with reference to how it arose, namely via the welfare form when the appellant was a child rather than through the established asylum interview procedures.

22. Although now of some age, and considering policies no longer in force, AA (Afghanistan) is still good authority on the issue of the respondent’s duties to apply her own policies and the approach of the Tribunal when they have not been followed. In AA (Afghanistan), the appellant (at that time an unaccompanied minor) was interviewed about his asylum claim without a responsible adult and not by a specially trained officer, in breach of guidance then in force [26]. The Court held that the fact of that policy should have been brought to the attention of the adjudicator [13]/[28] and as it was not the adjudicator was apparently unaware of the general prohibitions on such interviews [31]. Carnwarth LJ said at [51]:

“I accept of course that the policy governing interviews of minors is of great importance. If the tribunal becomes aware that an interview has been carried out in breach of those guidelines, that fact should clearly be taken into account in considering its weight, possibly by excluding it altogether. That may not always be the right response, since in some circumstances the claimant may wish himself to rely on it, for example to show consistency. Failure by the tribunal to take account of the breach may be an error of law justifying the setting aside of the decision.”

23. AA (Afghanistan) and other cases were considered by the Upper Tribunal in BH in which the Upper Tribunal digested and evaluated the case law about the respondent’s duty “to put relevant material before … a Tribunal to avoid it being misled”. At [42]-[43] the UT said:

“42. Whether the respondent breaches her duty to reach decisions that are in accordance with her policies will, of course, be fact and context-specific. This will particularly be the position where the respondent's assessment of the facts is such as, in her view, to make the policy immaterial. The respondent's own view of this matter will not, however, necessarily absolve her from the duty of drawing the policy's existence to the attention of an appellate Tribunal. Nevertheless, one can readily see that, in some cases, any connection between the policy and the range of factual conclusions that could be drawn by a Tribunal may be so tenuous as to make it unrealistic to impose any such duty on the respondent.

43. There is nothing in the case law to which our attention has been drawn that places a legal duty on a judge in the Immigration and Asylum Chambers of the First-tier Tribunal or the Upper Tribunal to possess a comprehensive knowledge of each and every policy of the respondent in the immigration field. Despite their expertise, no such judge can be reasonably expected to possess that knowledge. The same can, of course, be said of a Home Office Presenting Officer or advocate instructed by the respondent. The difference, however, is that the Presenting Officer or advocate merely represents the respondent, who for the reasons we have given, has knowledge of the policy and a duty to reach decisions by reference to it.”

24. Whilst the emphasis of the appeal before me focused less on the failure of the respondent to draw the policy to the Tribunal’s attention and more on whether or not the respondent breached the policy and what the judge should have then done, the caselaw to which I have referred highlights the importance in general terms to be attached to the respondent’s duty to act in accordance with her own policy and the significance that is likely to have on the proceedings before the Tribunal if the respondent is found not to have done so, absent extenuating circumstances. For these reasons, in my judgement, the judge’s observations at [34] about the failure of the appellant’s representative to demonstrate that the respondent’s policy also applied to the Tribunal revealed a misunderstanding about the impact of a potential breach by the respondent of her own policy on the proceedings before the Tribunal.

25. On its face, there can be little doubt of the expectation upon those completing the welfare form and those assessing an asylum claim, namely that material from the welfare form is not to be considered within the consideration of the asylum claim. The reasons why that is so is no doubt comparable to the rationale of the policy before the Court of Appeal in AA (Afghanistan). Safeguards are put in place when dealing with children and those safeguards include the presence of a responsible adult and a specially trained interviewing officer. In fact, as Ms Ferrin pointed out in her skeleton argument, such requirements are contained within paragraph 352 of the Immigration Rules which says:

“352. [...] When an interview takes place:
(a) it must be conducted in the presence of a parent, guardian, representative or another
adult independent of the Secretary of State who has responsibility for the child; and
(b) the interviewer must have specialist training in the interviewing of children; and
(c) the child must be allowed to express themselves in their own way and at their own
speed and, if they appear tired or distressed, the interview should be suspended, and the interviewer should consider whether it would be appropriate for the interview to be
resumed the same day or on another day.”

26. Ms Ferrin did not argue that there was no exception to the expectation that the content of the welfare form would not form part of the consideration of the asylum claim. That much is clear from the italicised paragraph set out at [6] above. In my judgement, that paragraph is also couched in mandatory terms as to the need to put to a child inconsistencies arising from the welfare form which, even Ms Tariq accepts, was not done expressly. The questions in the substantive interview upon which she relied are simply not sufficient to amount to compliance with the policy. They are simply questions which ask the appellant about his brother; his brother’s role in the police and his brother’s death. At no point was it put to the appellant that he has previously said something different and asked to account for that.

27. The judge purported to deal with this at [34]. However, the judge concluded that the appellant was afforded an opportunity to account for the inconsistency during cross-examination at the hearing.

28. It is clear from the italicised paragraph at [6] above that the requirement of the policy is that it is for the decision maker to ensure that the child has had a chance to comment on any inconsistency prior to the asylum decision being made. That is made clear by the following wording:

“Although this information can be recorded on the welfare form, asylum decision makers must never rely on information obtained from an interview where no responsible adult or legal representative is present unless this information has also been explored and raised with the claimant during the substantive asylum interview in the presence of a responsible adult or legal representative.”

29. In my judgment, the judge’s conclusion at [34] that any potential unfairness was remedied by the appellant having the opportunity to address the inconsistencies at the hearing is not a sustainable finding if the judge was relying on this to find that there was no breach of the respondent’s policy or, in the alternative, that there was reason nevertheless to attach weight to the inconsistency not withstanding a technical breach.

30. Accordingly, when the judge said at [35] that it was reasonable for her to rely on the material inconsistency, I am satisfied that was an error of law given the importance attached to the duty on the respondent to apply her own policy and the corresponding duty on the Tribunal to consider the impact of any breach on the weight to be attached to evidence obtained in breach of the policy. In my judgement, the judge should have concluded that the content of the welfare form was to be excluded or, in the alternative, that no weight could attach to the ‘material inconsistency’. It follows that in attaching weight, the judge was attaching weight to an immaterial matter giving rise to an error of law.

31. In light of my observations at [20] above and, in particular noting what the judge said in the alternative at [42] of her decision, namely that the appeal would have been allowed on asylum grounds, the error is clearly material and justifies setting aside the decision of the FtT pursuant to section 12(a) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”).

32. I have considered how to dispose of the appeal. I invited both parties to address me on disposal. Ms Ferrin submitted that it may be possible to dissect the error from the remaining credibility findings such that the appeal could be retained and re-made in the Upper Tribunal. Otherwise, if credibility was to be considered de novo, she submitted that the FtT was the appropriate venue for the re-making of the appeal. Ms Tariq was relatively neutral but indicated she would not oppose remittal to the FtT.

33. I have given consideration to the Court of Appeal’s decision in AEB v SSHD [2022] EWCA Civ 1512, the decision in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and para. 7.2 of the Senior President’s Practice Statements. On the issue of preserved findings, I have had in mind the decision of the Presidential Panel in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC).

34. The error impacted the proper assessment of the appellant’s credibility. I have considered carefully the interrelationship between the impugned paragraphs and those that follow where the judge made some adverse, but not decisive, comments about the appellant’s credibility [36]-[39]. Whilst the specific challenge to the judge’s decision related mainly to her findings on the ‘material inconsistency’, it is likely her conclusion about that impacted her assessment of the rest of the evidence. For example, at [39]:

“I accept that the overthrow of their town was violent and I accept that the family fled for their safety, albeit the precise timing is unclear. However, I am not satisfied that this finding is supportive of the appellant’s claim of a specific risk to his family rather than the more general risk presented to the community as a whole by the Taliban takeover.”

35. It is possible her conclusion on this issue would have been different but for the material inconsistency. It follows that I am satisfied that the judge’s overall consideration of the appellant’s credibility was infected by the error of law and should not be preserved.

36. The judge’s finding at [42] that, if the appellant was found to be credible, his appeal would have been allowed is not challenged and it is accepted by the respondent.

37. As the primary matter to be determined is whether, without reference to the welfare form, the appellant is credible to the lower standard, the re-making requires a hearing. As credibility is to be determined de-novo, the appellant seeks for it to take place at the FtT.

Directions for the re-making of the appeal

38. Given the way I have decided the error of law, the issues on the re-making of the appeal are limited. In the refusal letter the respondent relied to a significant degree on the inconsistencies arising from the welfare form. In light of this decision, that reliance is not justified. The respondent is now invited to consider whether or not she continues to oppose the appeal. If not, then the Tribunal will proceed to re-make the appeal in the appellant’s favour given the preserved findings that, if credible, the appellant’s asylum claim would succeed. If not the Tribunal will remit the appeal for a hearing to re-make the appeal with the only issue being the appellant’s credibility without reference to the content of the welfare form.

The appellant’s request for guidance

39. I have considered carefully whether the circumstances of or issues in this appeal require the Upper Tribunal to consider issuing guidance on the application of the policy. I have decided they do not. It does not appear that the problem of the respondent misapplying the policy is a pervasive one. The terms of the policy are clear, as is the caselaw as to the Tribunal’s obligations when confronted with a breach of the respondent’s public law duty to comply with her own policies.

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 remitted to the First-tier Tribunal to be listed before a judge other than the original First-tier Judge

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 May 2025
21 May 2025

Directions

1. By 4pm on 20 May 2025 the respondent is to inform the appellant and the Tribunal whether or not the appeal is opposed. Pursuant to this direction, the respondent has confirmed the appeal continues to be opposed.