Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001045

First-tier Tribunal No: PA/57872/2024 LP/05904/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 1st of July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE SWANEY

Between

AP
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Sirikanda, solicitor, of Bostanci Rahman Ltd
For the Respondent: Mr K Ojo, senior presenting officer

Heard at Field House on 9 June 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.

DECISION AND REASONS
Anonymity order
1. I have made an anonymity order because the importance of facilitating the discharge of the obligations of the United Kingdom under the Refugee Convention in the circumstances of this case outweighs the public interest in the principle of open justice.
Background
2. The appellant appeals the decision of First-tier Tribunal Judge Fern (the judge) promulgated on 11 January 2025 to dismiss his appeal against the refusal of his international protection and human rights claims.
3. An anonymity direction was made in the First-tier Tribunal, which I have maintained, as the interests of giving effect to the United Kingdom’s obligations under the Refugee Convention outweigh the principle of open justice.
4. The appellant is a citizen of Turkey who claimed asylum on or about 3 August 2022 on the basis that he has a well-founded fear of persecution in Turkey for reason of his actual or imputed political opinion. He claims that he is a supporter of the People’s Democratic Party (HDP); that he was detained and ill-treated on three occasions; and was accused by the Turkish authorities of supporting the Kurdistan Workers’ Party (PKK).
5. The respondent refused the appellant’s claim on 8 March 2024, and the appellant appealed the decision. His appeal was heard by the judge on 8 January 2025 and was dismissed in a decision promulgated on 11 January 2025.
6. The judge made the following findings:
(i) The appellant’s failure to claim asylum in France and Slovenia damaged his credibility with reference to section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act).
(ii) The appellant’s evidence contained serious internal inconsistencies and was inconsistent with external verified sources indicating a fundamental lack of credibility.
(iii) The core of the appellant’s claim is not reasonably likely to be true.
(iv) The appellant does not fear persecution for a Convention reason.
(v) The appellant has not shown that there are substantial grounds for believing that he will face a real risk of serious harm on return.
(vi) The appellant could safely relocate within Turkey, for example, to Istanbul.
(vii) Even if true, because he was not arrested, the appellant’s detention is not likely to be a cause for concern on return.
(viii) The appellant does not satisfy the Immigration Rules.
(ix) The appellant does not enjoy family or private life in the United Kingdom.
(x) The respondent’s decision causes an interference with the appellant’s enjoyment of article 8 rights, but the decision is proportionate. It is unclear why the judge made these findings, as if the appellant does not enjoy family or private life in the United Kingdom, article 8 is not engaged.
7. The appellant made an application for permission to appeal on 27 January 2025, which was out of time. The appellant made an application to extend time, which was supported by reasons. In granting permission to appeal, the First-tier Tribunal extended time.
8. The grounds of appeal were as follows:
(i) The judge erred in her assessment of credibility by failing to take into account a material consideration; in her application of section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act); in failing to give adequate reasons for the weight given to section 8 factors; and in a generally erroneous approach to the assessment of credibility.
(ii) The judge erred in finding that the country guidance cases demonstrate that a person who has been detained as opposed to arrested is less likely to be at risk of serious harm and finding his claim incredible as a consequence.
(iii) The judge erred in failing to take into account material evidence by relying on the executive summaries of the CPINs rather than engaging with the source evidence cited within them. This contributed to the judge’s finding that the appellant’s evidence was implausible and fundamentally lacking in credibility.
(iv) The judge erred in failing to take into account material evidence and/or make a finding on a material issue. The judge failed to take into account evidence of the appellant’s attendance at demonstrations/protests in the United Kingdom, which she was required to do regardless of whether the appellant referred to them in his oral evidence (which it is asserted he did) or his witness statement.
9. Permission to appeal was granted in respect of grounds (i), (iii) and (iv) only. This is unfortunate, as ground (ii) is linked to the other grounds, in that the judge’s findings in relation to the appellant’s profile are impugned in the grounds on which permission was granted. In any event, given the outcome, it is of limited significance.
The hearing
10. The appellant made an application pursuant to rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to rely on evidence that was not before the judge. The evidence was the Amnesty International report for 2023 on Slovenia, a country through which the appellant passed on his way to the United Kingdom. Ms Sirikanda accepted that the report was not before the judge; that the issue of the treatment of asylum seekers in Slovenia was not a matter that was raised before the judge; and that the new evidence therefore did not disclose an error of law. Notwithstanding that, she submitted that the judge’s failure to consider whether Slovenia was a safe country suggested a lack of scrutiny on the part of the judge in relation to other aspects of the claim that were before her.
11. I refused to admit the evidence on the basis that the issue to which it relates was not one that was before the judge (and where there was no explanation as to why the issue or the evidence was not before the judge), and it could therefore not assist in demonstrating that the judge had made an error of law. I deal with Ms Sirikanda’s submission below.
Discussion
12. Grounds (i) and (iii) are linked in that they relate to the judge’s assessment of the appellant’s credibility.
Grounds (i) and (iii)
13. Ms Sirikanda relied on paragraph 10 of the Court of Session’s decision in AJ v A Decision of the Upper Tribunal [2011] ScotCS CSIH 49 for her submission that notwithstanding the issue of whether Slovenia was in fact a safe country was before the judge, her failure to consider it indicated a general lack of anxious scrutiny of the matters that were before her. I reject that submission and agree within Mr Ojo’s submission that AJ was not considering the same situation as in the present case. In AJ it was contended that the judge’s failure to consider whether Greece was as safe country meant that the section 8 consideration was flawed, because although it was not specifically canvassed before the judge, the severe problems facing asylum seekers in Greece at the time were well known within immigration law circles, including tribunals, at the time of the judge’s decision, particularly following the House of Lords’ judgment in SSHD v Nasseri [2009] UKHL 23. It was in that context that the Court of Session found that it supported criticism of the judge’s approach to section 8 but did not of itself demonstrate an error of law. There is no suggestion that the situation with respect to Slovenia now is in any way comparable to the situation with Greece at the time AJ was decided such that it was a matter that the judge ought reasonably to have been aware of and taken into account.
14. It is arguable that the judge did not consider and/or give adequate reasons for rejecting the appellant’s explanation about why he did not claim asylum in either Slovenia or France. She does not consider his evidence that he was under the control of an agent, nor does she have regard to the fact that it is permissible for asylum seekers to exercise a degree of choice as to where they claim asylum before concluding that the appellant has not given an objectively reasonable explanation for his failure to claim asylum.
15. Section 8 of the 2004 Act does not contain any requirement as to the weight to be given to the behaviours contained within that provision. The matter of weight is generally a matter for the judge. It is arguable that the judge failed to give any/adequate reasons for finding that the appellant’s failure to claim asylum in Slovenia or France reduced his credibility to a ‘considerable degree’.
16. The judge correctly recognised that section 8 is only one factor in the overall assessment of credibility and that she must consider the merits of his asylum claim in the light of all the evidence. However, the judge stated that she must do so in the light of the appellant’s already reduced credibility. It is arguable that this is a flawed approach and that it is not until having considered that other evidence, that the judge should have determined the degree to which section 8 behaviours reduced the appellant’s overall credibility.
17. The judge quotes the executive summaries of the CPINs that were relied on before her. The executive summary is the respondent’s summary of what is contained in the CPINs and of her policy in respect of the issues covered in the CPINs. The executive summaries are not background evidence. Reliance on the executive summaries is therefore in my view dangerous, as they are neither objective nor necessarily an accurate reflection of the evidence which is contained in the source reports. The only reference to source evidence cited in the CPINs is to the US State Department report regarding the May 2023 elections. Nowhere else in her decision does the judge engage with any of the source evidence cited in the CPINs. Further, although she lists the background evidence relied on by the appellant, the judge does not engage with that evidence, and she does not give reasons for why she does not accept that the evidence is capable of supporting aspects of the appellant’s claim
18. The judge focused on the inconsistent way in which the appellant described himself, i.e. an active member of HDP versus a supporter. I accept Ms Sirikanda’s submission that the judge ought to have considered the appellant’s evidence about his actual activities and whether those activities were sufficient to give rise to a real risk rather than focusing on how he described himself. This significant, because passages within the CPINs were expressly relied on in the skeleton argument that was before the judge. The passages make reference to both members and supporters of HDP being at risk, specifically in relation to being suspected of supporting the PKK. The judge does not deal with those passages in her decision.
19. Mr Ojo submitted that the judge gave sustainable reasons for finding the appellant not credible because she identified inconsistencies within the appellant’s evidence. He accepted that had she not done so, her credibility findings may well have been open to criticism. In particular, Mr Ojo relied on the appellant’s inconsistent evidence about whether he had been to court or not; whether he was a low level supporter or an active member of the HDP; and in respect of whether there was an arrest warrant outstanding for him. He submitted that even if the judge was wrong in the weight she gave to section 8 factors, her findings on credibility are nevertheless sustainable.
20. Although the judge’s decision contains a relatively lengthy summary of the oral evidence and reflects that the appellant gave different evidence at the hearing in several respects than he had at interview, the judge does not indicate what she made of his explanation.
21. At paragraph 17 of the judge’s decision there is reference to the appellant’s representative having returned corrections to the respondent after the appellant’s interviews. Those letters are referred to in the refusal letter and are stated to have been taken into account in the consideration of the appellant’s claim. There is no reference to the substance of these in the judge’s decision and it is not clear whether they were in fact before her, as they are not contained in the respondent’s bundle. The refusal letter states that three sets of further representations were considered in deciding the appellant’s claim. They included ‘Further Representations – Amendments received 27th October 2022’; ‘Further Representations – Turkish ID card received 19th December 2023’; and ‘Further Representations – Letter from Montague Solicitors dated 23rd February 2024’.
22. At page 31 of the respondent’ bundle there is what appears to be a final page of a letter from the appellant’s solicitors, which contains corrections to the screening interview. As the screening interview took place on 3 August 2022, I infer that this is the last page of the letter dated 27 October 2022. The rest of the letter is not included. Neither the letter dated 19 December 2023, nor the letter dated 23 February 2024 is included in the respondent’s bundle. This is a breach of rule 24(1)(d) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the FTT Procedure Rules) and is a matter that ought to have been identified and resolved by the judge. The letters were potentially material to the consideration of the apparent inconsistencies in the appellant’s evidence.
23. For these reasons, I do not accept Mr Ojo’s submissions that the judge’s findings on inconsistencies in the appellant’s evidence are capable of meaning that any other errors in her credibility assessment are not material.
24. While each of the flaws in the judge’s consideration of the appellant’s credibility may not have amounted to a material error of law in themselves, I find that in combination they demonstrate a flawed overall approach to the assessment of credibility. As the judge’s assessment of credibility led her to conclude that the core of the appellant’s claim was not reasonably likely to be true, I find that the flaws do amount to a material error of law.
Ground (iv)
25. It is asserted that the judge failed to have regard to material evidence which included photographic evidence of the appellant’s activities in the United Kingdom, specifically his attendance at three demonstrations/protests. The judge records that the appellant’s evidence was inconsistent because on the one hand he said that he had only attended Kurdish activities, and on the other had claimed to support the HDP in the United Kingdom. The grounds state that the appellant disputes this. The grounds state that the appellant instructed his solicitors to obtain the audio recording of the hearing, but no transcript was adduced in evidence before me.
26. The judge refers to undated and untimed photographs showing a bearded man holding flags. I infer that they are the ones contained at pages 75 to 78 of the composite bundle. The judge does not refer to the additional photographs showing the appellant’s attendance at three demonstrations/protests which are dated and provide information about the location, and which are contained at pages 79 to 81 of the composite bundle. Ms Sirikanda submitted that even if the appellant had not mentioned these in his witness statement, it was incumbent on the judge to consider the evidence that was before her.
27. I do not accept that this is necessarily the case. The documents were uploaded to MyHMCTS on 7 January 2025, the day before the hearing. They were therefore available to the judge. However, pursuant to the Practice Direction which came into effect on 1 November 2024, where evidence is provided later than 5 working days before a hearing, the judge must decide as a preliminary matter whether to admit the evidence. There is nothing to suggest that the appellant made an application to admit the evidence either when it was uploaded or at the hearing. There is nothing to suggest that the existence of the photographs was drawn to the judge’s attention and given paragraph 16 and her otherwise very thorough record of the evidence before her, I find that it was not. I find that the judge was not aware of the additional evidence and therefore that her failure to consider it was not a material error of law. It is however a matter that could have been dealt with pursuant to rule 32 of the FTT Procedure Rules. Given my findings above, the entirety of the decision falls to be set aside in any event.
Conclusion
28. In summary, I find that the judge made a material error of law in the assessment of credibility.
29. I asked the representatives for their views as to what the appropriate course of action would be for remaking the decision in ethe event I found a material error of law. Mr Ojo submitted that the appeal should be retained in the Upper Tribunal based on his submissions that not all of the judge’s findings on credibility should be set aside and that those which are not set aside are fatal to the appellant’s claim.
30. Ms Sirikanda submitted that if a material error is found in relation to ground (iii) or ground (iv), the appeal should be remitted. Ms Sirikanda submitted that it would be an unjust approach to retain the appeal and preserve some credibility findings and reassess credibility only in part.
31. Having had regard to paragraph 7.2 of the Practice Directions and what was said by the Court of Appeal in AEB v SSHD [2022], Civ 1512, I find that the appeal should be remitted to the First-tier Tribunal for a fresh hearing. I consider that the errors in the credibility assessment are such that none of the findings on credibility should be preserved.
Notice of Decision
32. The decision of Judge Fern promulgated on 11 January 2025 involved the making of a material error of law.
33. The appeal is remitted to the First-tier Tribunal at Hatton Cross for a de novo hearing before any judge other than judge Fern.
Direction to the respondent
1. By no later than 21 days after the date of issue of this decision, the respondent must file and serve a bundle which complies with rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. In particular, the bundle must include all documents referred to in the refusal letter dated 8 March 2024, as required by rule 24(2)(d).

J K Swaney

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 June 2025