Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001101

First-tier Tribunal No: PA/52353/2020
IA/01760/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of June 2025

Before

UPPER TRIBUNAL JUDGE LINDSLEY
DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

Between

KM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 3 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
Introduction
1. The appellant is a citizen of Zimbabwe born in 1978. He came to the UK in 2002. He claimed asylum in 2017. The application was refused, his appeal was then dismissed, and he became appeal rights exhausted in February 2019.
2. The appellant made a fresh protection and human rights claim on 2nd July 2019 which was refused in the decision under challenge dated 20th October 2020. The appellant’s appeal, which took place on 28th November 2024, was dismissed by a First-tier Tribunal Judge on protection grounds but allowed on human rights grounds on the basis that it had been agreed by the respondent that he was entitled to be granted leave to remain on the basis of his 20 years’ residence in the UK in accordance with Appendix PL of the Immigration Rules.
3. Permission to appeal was granted by a Judge of the First-tier Tribunal on 25th February 2025 on the basis that it was arguable that the First-tier judge had erred in law as the protection appeal was dismissed because the appellant was not at risk of being removed, in light of his being entitled to limited leave to remain on Article 8 ECHR grounds, and so, it was found, there was no realistic asylum claim. It was found to be arguable that the appellant did not concede his asylum claim and was therefore entitled to a determination on that basis of his appeal; and that it was arguably irrelevant whether in practice he would be removed to whether he had a well-founded fear of persecution.
4. The matter now comes before us to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside and remade.
Submissions – Error of Law & Remaking
5. In the grounds of appeal settled by the appellant acting in person it is argued, in short summary, that the First-tier Tribunal erred in law as follows. It is argued that the fact that removal was no longer in prospect was irrelevant, and the appellant had wanted his asylum claim assessed by the First-tier Tribunal in accordance with the law and his expert evidence. It is argued that his position, that he had not conceded his asylum claim, is reflected in the recording of the hearing. The appellant argued in an email and initially before us that he would like any remaking hearing to take place in the Upper Tribunal as he would like the matter resolved as quickly as possible. However, after the appellant was given time to take advice and it was explained to him that this would reduce his appeal rights and that the Upper Tribunal might not be the appropriate forum for the remaking due to the extent of remaking required he changed his position and asked that the appeal be remitted to the First-tier Tribunal for remaking.
6. In the Rule 24 notice from the respondent dated 6th May 2025 the appeal is not opposed as the appeal hearing minutes indicate that the appellant wanted to proceed with his protection claim, and the presenting officer’s note indicates that the appellant wanted a “judicial finding on risk on return to Zimbabwe and Article 8”. The Upper Tribunal is invited to either determine the appeal in the Upper Tribunal or remit the rehearing to the First-tier Tribunal to be determined de novo. Before us Mrs Nolan submitted that it would be appropriate for the remaking to take place before the First-tier Tribunal because the appellant had been unlawfully denied a hearing of his asylum appeal.
Conclusions – Error of Law & Remaking
7. An error of law is found by consent. The First-tier Tribunal erred in law by not determining the protection appeal when the appellant had not conceded the appeal, even if his representative had behaved in a confusing way, in submitting a position which was contrary to his instructions from the appellant. The appellant’s protection claim did not disappear because he would not be forcibly expelled from the UK by the respondent, and the First-tier Tribunal erred by finding so at paragraph 11 of the decision, as the question to be answered is a hypothetical question, namely whether the appellant would be at real risk of serious harm if returned to Zimbabwe.
8. We agreed with the final position of both parties that it would be appropriate for the appeal to be remade in the First-tier Tribunal as the appellant had been denied a hearing on his protection appeal in the First-tier Tribunal and there will be extensive fact finding needed to determine his appeal, and thus the appeal should be remitted to the First-tier Tribunal in accordance with paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. We set aside the decisions of the First-tier Tribunal dismissing the appeal on asylum and humanitarian protection grounds but preserve the decision allowing it on human rights grounds.
3. We remit the remaking hearing of the protection appeal to the First-tier Tribunal to be reheard de novo by a different judge of the First-tier Tribunal.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9th June 2025