Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000767

First-tier Tribunal No: PA/56724/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 15th February 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

TP
(Anonymity Order made)
Respondent

Representation:
For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: Mr Bandegani, instructed by MTC Solicitors

Heard at Field House on 2 February 2026

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing TP’s appeal against the respondent’s decision to refuse his asylum and human rights claim.

2. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and TP as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant is a citizen of Sri Lanka born on 8 December 1993. He arrived in the UK on 22 December 2022, in possession of a visitor visa valid until 22 May 2023. He claimed asylum on 22 January 2023. His claim was refused on 23 February 2024.

4. The appellant’s claim can be summarised as follows. He used to work for the Sri Lanka Podujana Peramuna (“SLPP”) as an organiser and, as such, was privy to a number of secrets involving corruption by party officials. The SLPP won the 2019 presidential election in Sri Lanka, but following the ‘Easter Bombings’ that year he left the SLPP because he suspected that the party may have played some role behind the attacks. He joined an opposition party called the ‘Samagi Jana Balawegaya’ (“SJB”) in July 2019. As a result of his defection he was threatened and then assaulted by persons connected with the SLPP. Between August–September 2019 he was assaulted up to 10 times by individuals connected to the SLPP. In 2022, he travelled to Qatar for eight months to take up employment, but he then returned to Sri Lanka to be with his wife and small child because his wife were being threatened by the SLPP in his absence. The family then applied for visit visas to come to the United Kingdom and left Sri Lanka on 22 December 2022. Since coming to the UK he had been receiving threats and he therefore he claimed asylum in January 2023.

5. The appellant’s claim was refused on 14 November 2023 because the respondent did not accept his account, finding it to be internally and externally inconsistent. The respondent concluded that the appellant would be at no risk on return to Sri Lanka and that his removal would not be in breach of his human rights.

6. The appellant appealed against that decision. His appeal was heard by a First-tier Tribunal Judge on 16 December 2024 and was allowed in a decision promulgated on 17 December 2024. The judge accepted the appellant’s explanations in response to the respondent’s credibility concerns and found him to be a credible witness. The judge accepted that the appellant had been subjected to adverse treatment from the SLPP because of his affiliation with the SJB and that the threats to him and his family continued to exist, and concluded that he was at risk of persecution for a Convention reason if he returned to Sri Lanka. The appeal was accordingly allowed under the Refugee Convention and on Article 3 grounds.

7. The respondent sought permission to appeal the decision on the sole ground that the judge had erred by making a material misdirection of law in applying the incorrect standard of proof to the appellant’s asylum claim and failing to apply the guidance in JCK v Secretary of State for the Home Department (Botswana) [2024] UKUT 100 in that regard.

8. Permission was granted in the First-tier Tribunal.

9. The appellant filed and served a rule 24 response, asserting that there was no error of law and that even if there was, it was immaterial.

10. The matter came before me and I heard submissions from both parties.

11. Ms Isherwood relied on the grounds and submitted that the judge had erred by applying the lower standard of proof in relation to past events, rather than the correct standard of proof, the balance of probabilities, pursuant to section 32(2)(b) of the Nationality and Borders Act 2022, and as set out in JCK and that it could not be said that he would have reached the same conclusion if he had applied the correct standard of proof.

12. Mr Bandegani submitted that the respondent’s grounds were misconceived, since (a) there was no standard of proof for the determination of the facts of a claim, (b) JCK did not say what the Secretary of State was asserting, namely that past facts had to be determined to the higher standard of proof, and (c) the reason why the assessment of past facts were not to be assessed on a balance of probabilities was because that would lead to judges having to apply one standard of proof to a refugee claim and a different standard to humanitarian protection and Article 3 claims, which was why it was decided in cases such as R v Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958 and Kacaj (Article 3, Standard of Proof, Non-State Actors) Albania [2001] UKIAT 00018 that this was simply a risk assessment. Mr Bandegani submitted that that was why facts held to be reasonably likely to be true was sufficient and was all that mattered, and that that would then be carried over to the risk assessment. It made no sense to consider past facts on a balance of probabilities. Mr Bandegani relied upon [17] of JCK in submitting that assessing whether someone in fact feared persecution (the subjective fear question), was separate from assessing whether past events occurred. He accepted that the judge should have applied the balance of probabilities standard of proof to the question of whether the appellant had a subjective fear and had failed to do so. However he submitted that that was immaterial because the judge could not have found there to be no subjective fear on the findings made on the facts. There was therefore no error.

13. Ms Isherwood, in response, submitted that section 32(2)(b) of NABA stated that the assessment of the facts had to be made on a balance of probabilities, as made clear at paragraph 4 of the headnote to JCK. I asked Ms Isherwood to explain how that fitted with the lack of challenge to the judge’s Article 3 finding, whereby it was accepted that the appellant was at risk on return to Sri Lanka. She submitted that the appeal was allowed on Article 3 grounds only because it had been allowed primarily on asylum grounds.

14. Mr Bandegani responded further, submitting that the Secretary of State was bound to grant the appellant humanitarian protection given that the appeal was allowed on Article 3 grounds. Even if JCK was to be read in the way the respondent read it, that could not be read over to the Article 3 decision, as section 30 of NABA made it clear that sections 31 to 35 applied only to a determination of refugee status. Ms Isherwood did not have any additional response.

15. Following the hearing Mr Bandegani made written submissions as to the disposal of the appeal in the event that a material error of law was found, requesting that (a) the findings of the First-tier Tribunal be preserved, including those made to the lower standard upon which the appeal was allowed on Article 3 grounds, since the respondent had not appealed that decision or the findings that led to it; and (b) that the appeal be adjourned so that written and oral arguments could be made by both parties for the purpose of re-making the Refugee Convention ground, in light of the unchallenged and preserved findings relating to the Article 3 ground.

16. I invited Ms Isherwood to make written submissions in response. She submitted that the judge’s approach in applying the wrong standard of proof from the start of the decision amounted to a material error of law and that, whilst it was acknowledged that the appeal was allowed under the Refugee Convention and Article 3, the error impacted on all the findings. She requested that, if a material error of law was found, the next hearing would therefore have to be a de novo hearing.

Analysis

17. I do not agree with Mr Bandegani’s interpretation of section 32(2)(b) and JCK. He relies upon [17] of JCK in submitting that the Upper Tribunal distinguished between the assessment of past events/ facts and the question of subjective fear, referring in particular to the statement in that paragraph that “assessing that fear is a discrete exercise from assessing whether past events occurred”. However there is nothing in that statement or that paragraph, or elsewhere in JCK, which suggests that the assessment of past events should be considered on anything other than the balance of probabilities. The Tribunal was simply making the point that there could be cases where an assessment of past events does not necessarily lead to the same conclusion as an assessment of subjective fear, such as where there has been genuine persecution in the past on the facts but which, as a result of a change in circumstances, is no longer a reason for there to be a subjective fear. That is clearly not applicable in the case before me. That section 32(2)(b) relates to the credibility assessment of an applicant’s claim is indeed supported by the reference to “section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (asylum claims etc: behaviour damaging to claimant’s credibility).” In the circumstances, and to that extent, I do not accept that the respondent’s grounds of appeal are misconceived.

18. As for whether the judge did indeed fail to apply the correct standard of proof and failed to make his assessment on the balance of probabilities when determining the question of credibility and subjective fear, I have to conclude, despite his otherwise clear and comprehensive assessment of the evidence and the appellant’s claim, that he did. Although he directed himself appropriately at [11] when considering the legal framework, and quite properly directed that he had to first determine whether the appellant feared persecution on the balance of probabilities, the body of his decision and the findings that he made strongly suggest that he did not follow his own self-direction. Rather, at [29] and [31] he expressly referred to the lower standard of proof, and implied that same standard at [33]. I therefore agree with the respondent that the judge applied the incorrect standard of proof when assessing the credibility of the appellant’s claim and his subjective fear of return to Sri Lanka, in relation to the claim under the Refugee Convention. The judge accordingly erred in law.

19. However, I have to consider whether that error is one which justifies the setting aside of the First-tier Tribunal Judge’s decision. Section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 makes clear that I have a discretion in that matter.

20. In exercising that discretion, I consider it relevant to have regard to the somewhat bizarre situation that arises in this case. The respondent has not sought to challenge the judge’s decision to allow the appeal on Article 3 grounds. Ms Isherwood accepted that the appeal had clearly been allowed on that basis and did not seek to amend the grounds to raise any challenge to that part of the decision. As Mr Bandegani properly pointed out, section 30 of NABA makes it clear that section 32 applies only to the determination of whether a person is a refugee and does not apply to humanitarian protection and Article 3 human rights claims and, as such, the lower standard of proof still applies to those claims, both in regard to the credibility assessment and the risk on return.

21. In the circumstances, by way of the absence of a challenge to the judge’s decision on the Article 3 claim, the respondent has effectively accepted that the appellant faces a real risk of serious harm on return to Sri Lanka. Additionally, in the absence of any relevant challenge, the respondent has also accepted that the appellant’s claim potentially engages the Refugee Convention on the basis of his political opinion (albeit not accepting that he succeeded in his asylum claim). The respondent therefore accepts that the appellant is at real risk of serious harm on return to Sri Lanka for a Refugee Convention reason, albeit not being a refugee or entitled to refugee status. The only reason for challenging the asylum claim is that the appellant’s subjective fear was not established to the required standard set out in section 32(2) of NABA. Yet it was sufficient to make out a claim to be at real risk under Article 3. It therefore makes no sense, it seems to me, to challenge the finding that the asylum claim fails. Indeed, as Mr Bandegani pointed out, the Tribunal in Kakaj, at [15], specifically warned against such a situation, observing that different standards would produce confusion and be likely to result in inconsistent decisions. It was for that reason that the Tribunal in Kakaj found that the standard of proof in Article 3 claims had therefore to be considered as the same as that in asylum claims.

22. The respondent seeks to make the converse argument, namely that the judge’s error in applying the wrong standard of proof from the start of the decision impacted on all the findings, including the findings on Article 3. However I cannot see how that can be the case. The only error identified is the application of the wrong standard of proof to the findings on the asylum claim. No challenge is made to the substance of those findings. That standard of proof does not apply to claims of entitlement to humanitarian protection or to Article 3 human rights claims. I acknowledge that the judge’s decision on Article 3 was not supported by any separate or independent reasons and was simply based upon the decision under the Refugee Convention. However the findings made under the Refugee Convention, upon an application of the lower standard of proof to the assessment of the facts of the claim, were sufficient to allow the appeal under Article 3, even if not to allow the appeal under the Refugee Convention. I therefore do not agree with the respondent that the judge’s error infected the decision to allow the appeal under Article 3. Indeed, as already stated, the grounds did not raise any challenge to the Article 3 decision, permission was not granted for such a challenge and there was no application to amend the grounds to include such a challenge. There is therefore no basis or justification for the Article 3 decision to be set aside together with the decision on the appellant’s asylum claim.

23. In the rather unusual circumstances in this case, I do not consider that it would be appropriate to set aside the judge’s decision. The judge gave clear and cogent reasons for finding the appellant’s account to be credible, albeit to the lower standard and, other than in relation to the standard of proof, his findings have not been challenged. As stated, to set aside his decision on the asylum claim whilst maintaining the Article 3 decision gives rise to inconsistent decision-making and makes little sense. It would be somewhat of an artificial exercise to have to re-make the decision in the asylum claim whilst accepting the findings made under Article 3. Accordingly, I decline to set aside the judge’s decision. The decision to allow the appeal is therefore upheld. I dismiss the Secretary of State’s appeal.

Notice of Decision

24. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. The Secretary of State’s appeal is dismissed and the decision to allow the appeal stands.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 February 2026