Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001070
UI-2025-001315

First-tier Tribunal No: PA/53024/2024
LP/08629/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 October 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

AC
(ANONYMITY ORDER CONTINUED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Banham of Counsel, instructed by Seren Solicitors
For the Respondent: Ms L Clewley, a Senior Home Office Presenting Officer

Heard at Bradford on 28 July 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 and 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. The parties may apply on notice to vary this order.

DECISION AND REASONS
Introduction
1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge McMahon (“the Judge”) who by way of a decision dated 17 January 2025 dismissed the Appellant’s appeal on protection and human rights grounds.
2. First-tier Tribunal Judge Kudhail granted the Appellant permission to appeal by way of a decision dated 28 February 2025 on limited grounds. Namely,
“Ground 3 argues the judge did not make findings on the appellants sur place activity and consequent risk profile. There was photographs before the judge and there is no consideration of sur place activity. This, this ground is arguable.”
3. The Appellant’s solicitors had made a renewed application for permission to appeal in respect of the grounds on which permission to appeal had been refused by the First-tier Tribunal. That renewed application was considered by Upper Tribunal Judge Hanson. By way of a decision dated 13 May 2025 Upper Tribunal Judge Hanson, in some detail, refused the Appellant’s application for permission to appeal on the renewed grounds.
The Hearing Before Me
4. Mr Banham said that the only issue was in respect of the Refugee Sur Place activity. He referred me to the grounds of appeal drafted by the Appellant’s solicitors which had stated,
“The Judge McHahon failed to make a finding of fact as to whether the appellant attended demonstrations in Turkey and whether this in itself would put the appellant at risk, Judge McHahon failed to consider the pictures of the appellant in the bundle attending similar celebrations in the United Kingdom.”
5. Mr Banham said the issue was a narrow one and in respect of the photographs of the Appellant at pages 61 to 64 of the bundle. The bib that can be seen states in Kurdish “Happy New Year”. Mr Banham said that the argument was that the Judge should have made findings as the photographs were material because the Appellant was politically active in HDP at its most minimal level and that this would thereby place the Appellant at risk on return. This was an extension of the Appellant’s political activity. Mr Banham said that the Respondent had accepted that if the Appellant has supported the HDP then he ought to be successful in his claim. He said that the Respondent’s review had referred to the photographs, albeit at best it was not accepted he was high profile in any event. Mr Banham said that whilst the Respondent’s Rule 24 referred to the bib stating it was the New Year, that mis-contextualised the matter because it is seen as political. Mr Banham said, in effect, that even though permission was not granted in the other grounds of appeal, the whole decision of the Judge ought to be set aside because credibility was wrongly decided.
6. Ms Clewley on behalf of the Respondent relied upon a Rule 24 response dated 7 March 2025. That stated in so far as relevant,
“The respondent will submit that ground 3 reveals no Error of Law. There is no evidence any arguments were made that the Appellant had engaged in Sur place activity, it is not argued in the ASA and there is no ROP submitted with the grounds recording that arguments were made in relation to this. The photos at 25-27 of the Appellants Bundle show the Appellant at a Newroz event, this is a Kurdish celebration as opposed to a political event, the Judge has fully considered whether the Appellant is at risk on return by virtue of his Kurdish ethnicity and finds he is not. The Appellant makes no mention in his witness statement of any sur place activities for the HDP. It is clear from the Judges decision that he does not accept the Appellants account of any political activity in Turkey. This ground amounts to disagreement with the decision.”
7. In reply Mr Banham repeated some of his earlier submissions and said that the Refugee Sur Place matters were Robinson obvious and should have been considered by the Judge.
Consideration and Analysis
8. I remind myself that the expertise of the First-tier Tribunal has been impressed upon the Upper Tribunal for very many years, including more recently in the decision of the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 9 June 2025. Arnold LJ, with whom Singh and King LJJ agreed. It was said at paragraph 29:
“There have been many recent authorities in both the Supreme Court and this Court on the need for appellate courts and tribunals to be cautious before interfering with findings of fact and evaluative assessments by lower courts and tribunals, and in particular specialist tribunals such as the FTT. For present purposes it is sufficient to cite Lord Hamblen’s summary in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 at [72]:
‘It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope of Craighead.”
9. I raised with the parties during the hearing to the decision of the Upper Tribunal in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC). I set out the judicial headnote so that it remains at the forefront of parties’ minds. I highlight that which appears in bold as being particularly relevant to this case before me:
1. The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal.
2. Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.
3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.
4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.
5. Whilst the Devaseelan guidelines establish the starting point in certain appeals, they do not require a judge to consider all issues that previously arose and to decide their relevance to the appeal before them. A duty falls upon the parties to identify their respective cases. Part of that process, in cases where there have been prior decisions, will be, where relevant, for the parties to identify those aspects of earlier decisions which are the starting point for the current appeal and why.
6. The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case.
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.
10. In this case, I am clear that there is no material error of law in the Judge’s decision. I come to this view for the following reasons.
11. The Appellant was represented by competent solicitors and counsel at the hearing. The issues for the Judge to deal with were set out within the Appellant’s skeleton argument. The Judge dealt with those issues.
12. The Judge did not find much of the Appellant’s account to be true. Indeed, the Judge was very troubled by the ‘late’ documents from the Appellant. The Judge made several adverse findings against the Appellant and the Appellant has been refused permission to appeal in respect of those matters by both the First-tier Tribunal and the Upper Tribunal.
13. The Appellant had not raised Refugee Sur Place as an issue in his witness statement. As the Respondent’s Rule 24 reply makes clear, nor is it being suggested that the Appellant’s advocate raised the issue at the hearing, otherwise a transcript or note of the hearing would have been provided by the Appellant’s solicitors today.
14. In my judgment, this appeal is precisely the old-style of attempts at a ‘rolling consideration’ which the Presidential Upper Tribunal in Lata said must be guarded against and which Appellant’s solicitors must ensure does not occur. It was for the Appellant and his lawyers to identify and to expressly state what the issues were and for them to then provide the necessary evidence. As Lata makes clear, it was not for the Judge to trawl through the large amount of paperwork and to ‘find’ issues for the Appellant or to suggest issues or the like. Nor is it attractive to suggest that because the Respondent’s review rejected Refugee Sur Place activities as being relevant that somehow that the matter thereby became an issue for the Judge to consider at a later stage.
15. Whilst Mr Banham contended that the Refugee Sur Place activities were Robinson obvious, that is plainly wrong, because if they had been then the Appellant, his solicitors or his counsel would have raised them.
16. In any event, even one looks at the photographs of the Appellant in the bundle, they show little more than a “Happy New Year” event and it would be a huge leap to conclude, even on the lower standard, that somehow the Appellant would thereby be at risk on return. The background to the Appellant’s case was rejected by the Judge in any event. I can see why the Appellant and his lawyers at the First-tier did not raise this as an issue. It had no substance.
17. In my judgment, this is a clear case in which the Appellant’s arguments have no merit. It is not possible for the Appellant to seek to re-argue his case on appeal. The first and only hearing was at the First-tier Tribunal. The caselaw and procedure make it clear that the specialist First-tier Tribunal’s decision must be respected. Especially since it had the benefit of seeing and hearing from the Appellant and from his advocate at that hearing.
18. I add that I am aware of, albeit not cited to me at the hearing, the Court of Appeal’s decision in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 relating to Refugee Sur Place activities. This case does not assist the Appellant when the issue of Refugee Sur Place was not even identified by the Appellant at the First-tier Tribunal.
19. Accordingly, I conclude that there was no material error of law in the Judge’s decision.
Notice of Decision
The Decision of the First-tier Tribunal does not contain a material error of law.
The First-tier Tribunal Judge’s decision dismissing the appeal on all ground stands.
The anonymity direction is continued.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 August 2025