Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001115

First-tier Tribunal No: PA/52455/2024
LP/03085/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 August 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MERRIGAN

Between

D K
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M. Schwenk, Counsel
For the Respondent: Mr P. Deller, Senior Home Office Presenting Officer

Heard at Field House on 6 May 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

BACKGROUND
1. The appellant, who was born in 1994, appeals against the decision (“the decision”) dated 7 April 2025 of First-tier Tribunal Judge Ripley (“the judge”), which dismissed the appellant’s appeal in respect of her international protection claim, against the Respondent’s decision dated 26 January 2024.
2. Partial permission to appeal was granted by First-tier Judge Hollings-Tennant on 6 March 2025, limited to the first ground, in the following terms.
“Ground [1] asserts the Judge erred by failing to make findings on the Appellant’s identity and whether the Indian passport was issued based on false information. There is some merit in this assertion. Whilst the Judge refers to country background information as to the prevalence of fraud and self-directs as to relevant authority, it is at least arguable she fell into error by failing to make an explicit finding on the Appellant’s true identity. This is of direct relevance to the question as to whether the genuine passport was obtained using false information and can properly be regarded as having been issued to her.”
3. This goes straight to the heart of the matter. In the hearing before the judge, whether the appellant was an Indian or Afghan national not just a live issue, but the fundamental one. The judge records at [45]:
“It was accepted by both parties that the outcome of the appellant’s asylum claim rests on this finding as to her nationality. Having found that the appellant is an Indian national, I am not satisfied that she has set out reasons for fear of return to India.”
4. Further on in [45], the judge explains the stark binary nature of this finding. While the appellant had relied upon a history of domestic violence, the focus of her claim had been a risk of return to Afghanistan, on the basis of being a Sikh woman. The characteristic of being a Sikh woman would not support a claim under the Nationality, Immigration and Asylum Act 2002 were she to return to India.
5. In support of her finding that the appellant is an Indian national, the judge provides comprehensive reasons for doing so, focussing on the appellant’s parents’ nationality, the appellant’s linguistic profile, and specific answers given in the appellant’s screening interview dated 26 June 2023. One aspect of that screening interview – the appellant’s use of the word “rupees”, being the currency of India, rather than “pesa”, being the currency of Afghanistan – had been the subject of a further appeal ground not granted permission by Judge Hollings-Tennant. Today, very fairly, Mr Schwenk has conceded that aside from the limited points raised by the first ground, the decision is otherwise a very thorough one. It is to those points that I now turn.
6. Expanding on the appellant’s skeleton argument, Mr Schwenk submits that there is a fundamental gap in the judge’s reasons created by there being no finding as to who the appellant actually is. While the passport photograph is of the appellant, the name on the passport (and visa application) that the respondent says identifies the appellant is not the same name that she asserts is her own: that name by which she has sworn her two statements. There is uncontested DNA evidence to demonstrate that the persons she identifies as her biological parents – themselves Afghan nationals – are indeed her parents; and they bear different names to those recorded in the appellant’s visa application. Alluding to this, the judge decided at [37]:
“The respondent has relied on the appellant’s self-identification as an Indian national in her screening interview. The appellant has set out in her witness statement that the interviewing officer in her screening interview informed her that he would have to record her as an Indian national because those were the details that the system had disclosed. He stated that she could seek to change this later. I accept that explanation for the content of the screening interview. It is recorded in the screening interview that she was born in Kabul in Afghanistan and her alternative Afghan name has also been recorded.”
7. In accepting that explanation, it is implicit that the judge decided that the appellant’s true name and identity is not that which appears on the passport. This, says the appellant, leads directly to an error of law in relying, as she was invited to do by the respondent, upon the case of Hussein and Another (Status of passports: foreign law) [2020] UKUT 250. Paragraph 1 of the headnote in Hussein reads:
“A person who holds a genuine passport, apparently issued to him, and not falsified or altered, has to be regarded as a national of the State that issued the passport.”
8. In Hussein, there was no debate as to identity of the appellant: the question was whether the passport was genuine. It being found to be genuine, it followed that its holder should be treated as a national of the issuing country. Explaining the importance of a passport, Judge Ockelton stated at paragraph 11 of Hussein:
“…Passports are the lubrication that allows international travel: without a reliable passport system each individual would have to prove identity, nationality and good standing by individualised evidence at every international border.”
9. Considering Hussein, Judge Ripley stated at [20]:
“The respondent relies on Hussein and Another (Status of passports: foreign law) [2020] UKUT 250. I am satisfied that this authority does apply, although only the first page of the passport has been produced. There is a lack of documentary evidence that the passport is a forgery. The appellant left India, changed planes in transit and passed through immigration in the UK without detection of the passport as a forgery.”
10. And so, says Mr Schwenk, we arrive at the error of law. The appellant does not dispute whether the passport was genuinely issued (as found likely to be true by the judge at [19]) or not: the appellant contends that even if the passport was genuinely issued, the most that it discloses is someone else’s identity: it was not issued to her. In other words, where there is dispute as to identity, the operative word in the headnote “A person who holds a genuine passport, apparently issued to him” is ‘him’ (or here, ‘her’), rather than ‘genuine’. Without defining who ‘her’ refers to, the judge could draw no conclusion from the genuineness or otherwise of the passport. Completing his argument, Mr Schwenk contends that, there being nothing else in the decision that amounts to an explicit finding as to the appellant’s true identity, Hussein has not been correctly applied (indeed, could not be applied on the facts as found), and there is a fatal gap in the judge’s reasoning.
11. This, Mr Schwenk contends, is sufficient error of law for the decision to require remaking. Mr Deller, for the respondent, relies upon the decision’s acknowledged thoroughness. He submits that that there is no error of law in [20] but, even if there is, the remainder of the judge’s reasoning is sound.
12. Turning to Mr Schwenk’s argument, I am satisfied that [20] gives rise to an error of law. I do not consider, as suggested by Mr Deller, that the implicit identification of the appellant at [37] referred to above is sufficient definitively to decide the identity of the appellant such that Hussein may be applied. Even if the implicit identification in [37] were taken to be sufficient (where the judge refers to the appellant to have self-identified as an Indian national in her screening interview), the result would be that the judge decided that the appellant does not bear the same name as that provided in the passport. It is difficult to see in that alternative how the passport could properly be said to be issued to ‘her’ for the purposes of the headnote in Hussein: it has, indeed, not been issued to her.
13. I do not, however, consider that this error of law is fatal to the decision. The judge continued at [21]:
“Alternatively, I am this [sic] satisfied that the Indian passport provides evidence supporting the respondent’s case that the appellant is not an Afghan national but is an Indian national.”
14. The respondent’s argument that the appellant’s passport is genuine is considered by the judge at [15] and [19] (including the origin of the passport photograph referred to above); and the appellant’s argument advanced before the judge that that the passport is not genuine (most likely obtained by fraudulent information, rather than forged) is considered at [16] to [18]. In consideration of these arguments, the judge has surveyed beyond the (erroneous) applicability of Hussein. The judge’s findings at [19] are not linked to her comments on Hussein, and provide a bridge to her finding at [21] that the appellant is an Indian national:
“…based on the background evidence that both parties rely on, I am satisfied that it is likely that the passport was genuinely issued by the passport office in India, but that the argument being made by the appellant is that the documents submitted in support of that passport application were not reliable. As a consequence of that finding, I am satisfied that the appellant was either residing in or visited India in 2021 to give her biometrics when the 2021 passport was issued, despite her denying that this was the case in interview.”
15. The burden of proof is upon the respondent to show that the appellant is an Indian national rather than an Afghan national. The judge was well within her discretion to regard the passport as supporting evidence overall for the appellant being an Indian national. She decided at [44] both that the respondent had succeeded on the balance of probabilities in demonstrating that the appellant is an Indian national; and that the appellant had not succeeded on the balance of probabilities in demonstrating that she is an Afghan national. Moreover, as has been rightly conceded, the decision is otherwise a thorough one. The judge at [40] to [46] meticulously weighed the evidence before her, setting out clearly the reasons for her decision. While the appellant has identified an error of law in the application of Hussein, occasioned by there being no explicit finding as to the appellant’s individual identity, it is insufficiently substantial to undermine the decision in the context of the factual enquiry before the judge: determining on the available evidence whether the appellant was an Afghan or Indian national.
16. In the circumstances, I find that the error into which the judge fell was immaterial to the outcome of the appeal; and the appellant’s appeal against the decision is dismissed.

Notice of Decision
The appellant’s appeal is dismissed. The decision of the First-tier Tribunal dismissing her appeal stands.

D. Merrigan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
9 August 2025