Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2025-001254

First-tier Tribunal No: PA/65443/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of January 2026

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

MY
(ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr A Fitzsimons, instructed by Oracle Solicitors.
For the Respondent: Mrs R Arif, Senior Home Office Presenting Officer

Heard at Royal Court of Justice, Belfast on 17 September 2025
Decision and Reasons
Anonymity
1. This appeal concerns a claim for international protection. 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.”
Introduction
2. The appellant is a national of Chad. On 20 January 2023 he claimed asylum. His claim was refused by the respondent on 3 May 2024. The respondent accepted the appellant’s identity and that he is a national of Chad, but rejected all the claims made by the appellant regarding the events leading to his departure from Chad or indeed Sudan.
3. The appellant’s appeal against the respondent’s decision was dismissed by First-tier Tribunal (“FtT”) Judge Hutchinson (“the judge”) for reasons set out in a decision dated 3 February 2025 (“the decision”).
4. The appellant claims the decision of the judge is vitiated by material errors of law. Six grounds of appeal are advanced. Permission to appeal was granted by FtT Judge Barker on 17 March 2025.
The Hearing of the Appeal Before Me
5. Mr Fitzsimons adopted the skeleton argument settled by him, dated 9 September 2025. He submits that although the judge referred to the relevant legal framework at paragraphs [10] and [11] of the decision, the judge misapplied the law and the standard of proof. He submits the judge also erred in the adverse credibility findings made and erred in using the adverse credibility findings based upon the appellant’s initial claim to be from Sudan as undermining other claims made by him. Mr Fitzsimons submits that reading the decision as a whole, it is not clear that what the judge had in mind at each stage and the standard of proof that she was applying.
6. In reply, Mrs Arif submits there is no material error of law in the decision of the judge. The judge directed herself correctly as to the test to be applied and gave detailed reasons for the adverse credibility findings she made. The judge summarised at paragraph [14] of her decision that the appellant’s evidence was vague, lacking in detail and inconsistent, regardless of which standard of proof is applied. The judge considered what had been said by the appellant at the screening interview and it was open to the judge to reject the appellant’s claim that his claim had been incorrectly recorded by the Home Office and that he has not provided a reasonable explanation for the contradictory information provided as to his nationality. Mrs Arif submits the judge gives a number of reasons for rejecting the claims made by the appellant and gives adequate reasons for the findings she made. She submits the appellant simply disagrees with the findings made and conclusions reached.
Decision
7. Although initially formulated as six grounds of appeal, there is some overlap and in his skeleton argument dated 9 September 2025, Mr Fitzsimons summaries the grounds as follows:
(i) The First-tier Judge misapplied the law.
(ii) The First-tier judge made material error of facts.
(iii) The First-Tier Judge failed to into account that the Appellant was not challenged about his alleged inconsistencies and therefore failed to resolve conflicts which is against the principle of fairness.
(iv) The First-Tier Judge erred in her credibility findings.
8. In addressing the grounds of appeal, I adopt the headings referred to by Mr Fitzsimons.
Misapplication of the Law
9. The first criticism made of the decision concerns the judge’s approach to section 32(2)(b) of the Nationality and Borders Act 2022 (“the 2022 Act”) and the guidance set out in JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100. Mr Fitzsimons accepts the judge correctly set out the two-stage test that is to be applied at paragraph [10] of the decision:
“… I must first determine the following matters on the balance of probabilities:
(a) whether the appellant has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a PSG (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the appellant does in fact fear such persecution in their country of nationality as a result of that characteristic.”
10. Mr Fitzsimons submits that in JCK, the Upper Tribunal confirmed that in determining, on the balance of probabilities, whether the appellant “does in fact” fear persecution in their country of nationality, the assessment is a discrete exercise from assessing whether past events have occurred. Mr Fitzsimons submits the Upper Tribunal said at paragraphs [17] and [18] of the decision in JCK that credibility alone is not determinative and the background evidence is relevant because it provides context to the assessment of the appellant’s fear. Mr Fitzsimons submits that here the judge focused exclusively on the credibility of the appellant and failed to consider the background evidence in the CPIN: opposition to the state, Chad, March 2024, which confirms, inter alia, that the government intimidated and arrested opposition leaders, journalists, human rights defenders, civil society activists and protest organisers and those who organised and/or participated in protests against the government attracted adverse attention from the authorities. Mr Fitzsimons sets out relevant extracts from the CPIN in his skeleton argument and I have had regard to the material that he relies upon.
11. I reject the claim that the judge misapplied the law as claimed by the appellant. There can be no doubt that the judge was aware of the legal framework that applies to this claim in accordance with section 32 of the 2022 Act. It is referred to at paragraph [10] of the decision and the judge refers to the first two questions that she had to address on the balance of probabilities. As far as the first question is concerned, the respondent had, as the judge said in paragraph [33] of her decision, accepted that the appellant fears persecution for a convention reason (i.e. political opinion). The focus was therefore on the second question. That is, whether, on the balance of probabilities, the appellant “does in fact fear” such persecution (i.e. the ‘subjective fear test’). To that end, the credibility of the appellant, although not determinative, is relevant. That is clear from the passages in JCK that Mr Fitzsimons refers to, when read as a whole:
“17. … Assessing that fear is a discrete exercise from assessing whether past events occurred. Consider a claimant who has been horribly persecuted in the past but whose persecutors have now fallen from power: he could prove, on balance, that the material facts he has presented are true, but he may no longer in fact be afraid. Conversely it is well understood in this jurisdiction that claimants who are “in fact afraid” may seek to exaggerate, or even falsify, past events in order to prove their case. There will be cases in which the acceptance or rejection of historical facts presented by a claimant will inform the decision on whether or not he is “in fact afraid”. As it happens, this is one of them. That is not however always the case. Section s32(2)(b) asks decision-makers to consider a different question, and in doing so relegates the matter of ‘credibility’ to where it belongs in the refugee risk assessment: it can be relevant, but will not on its own be determinative. (my emphasis)
18. The country background material is always going to be relevant here, because it provides context to assessing someone’s claimed fear. If a claimant is from, for instance, a particular ethnic group widely persecuted in his country of origin, that is going to be a relevant consideration when assessing whether or not he is in fact afraid. Again, it is important to remember that this is, at this stage, not an assessment of risk: this is an assessment of whether someone is afraid.”
12. To put that in context, in JCK, the respondent had accepted that JCK is a ‘born-again’ Christian, and that he is a member of the Herero tribe, but rejected the contention that he would be at risk for any of the reasons claimed. In any event, the Botswanan government could provide sufficient protection from hostile members of the Herero tribe, and/or the appellant could relocate within Botswana. At paragraph [32] of the decision, the Upper Tribunal acknowledged that it is not possible to evaluate subjective fear (and in many cases the Convention ground) without having some regard to the context in which that fear is said to arise. The Upper Tribunal found there to be an error in the FtT’s analysis of the first question that arises but that was not material to the outcome of the appeal.
13. Here, to adopt the terminology used in JCK, the historical facts presented by the appellant inform the decision as to whether or not he is “in fact afraid”. The question whether the appellant does in fact fear such persecution in Chad because of his political opinion (imputed or otherwise) is one that cannot be divorced entirely from a proper consideration of the claim that he has made, and his credibility. The respondent had very clearly rejected the appellant’s account of events (the subjective fear) leading to his claim for international protection. In the respondent’s decision, the respondent clearly rejected the appellant’s claim that he is of adverse attention to the government in Chad because of perceived political opposition. The respondent made it clear in the decision that the credibility of the appellant is in issue. If the appellant’s account of events is rejected so that he has not established a ‘subjective fear’, he cannot be said to be “in fact afraid” or put another way “he does not in fact fear”.
14. In an appeal such as the present, where the credibility of the appellant is in issue, a judge adopts a variety of different evaluative techniques to assess the evidence. The judge will for instance consider: (i) the consistency (or otherwise) of accounts given by the appellant at different points in time; (ii) the consistency (or otherwise) of an appellant's narrative case for asylum with their actual conduct at earlier stages and periods in time; (iii) The consistency or otherwise of the account with relevant background material; (iv) the adequacy (or by contrast paucity) of evidence on relevant issues that, logically, the appellant should be able to adduce in order to support his or her case; and (v), the overall plausibility of an appellant's account. A judge is not required to take at face value an account of facts proffered by an appellant, no matter how contrary to common sense and experience of human behaviour the account may be.
15. Contrary to what is said by Mr Fitzsimons, the judge did have regard to the background material and in particular the CPIN. The judge referred to the CPIN at paragraph [24] of the decision in the context of the claims made by the appellant. Consistent with the extracts from the CPIN referred to by Mr Fitzsimons, the judge was right to acknowledge that there is background material that states that those who openly criticise or are perceived to criticise the government may be at persecution (depending on a number of factors including profile and the nature/degree of opposition activities). The appellant does not however claim to be, for example, an opposition leader, journalist, human rights defender, civil society activist or protest organiser. The interest the appellant claims the authorities have in him does not arise because he attended a protest (banned or otherwise). The judge was concerned with the consistency or otherwise of the appellant’s account with relevant background material, not simply general background material.
Material error of fact
16. Mr Fitzsimons submits the judge made “an error of fact” when she said, at [24]: “..I was not pointed to anything in the Chad CPIN 2024 or otherwise..”. It is unhelpful to take selective passages from a paragraph in a decision in the way Mr Fitzsimons has sought to do. Paragraph [24] of the decision must be read as a whole and in context. For the reasons that I have already set out at paragraph [15] above, contrary to what is suggested by Mr Fitzsimons, the judge did have regard to the CPIN and there is no error of law in the judge’s consideration of the background material, whether categorised as an ‘error of fact’ or otherwise.
17. I also reject the claim that the judge erred in finding that the appellant had not corrected inconsistencies in his account after the respondent’s decision to refuse his claim. Mr Fitzsimons refers to the appellant’s asylum interview completed on 29 February 2024 in which the appellant confirmed that he had been provided with a copy of the record of the screening interview and went on to say that he found a lot of ‘false information’ so he spoke to his solicitors about it. He did not know whether the respondent had been provided with the changes by the solicitors. During that interview the appellant had claimed his parents were born in Darfur, not him, and that he was born in Chad He explained that his parents originate from the Berti Tribe.
18. The appellant was asked at his asylum interview (Q.2) whether the contents of his screening interview are correct. He replied “yes”. It is clear reading paragraph [18] of the decision as a whole, that the judge considered the appellant’s claim that information had been incorrectly recorded during the screening interview. It was open to the judge to conclude that she was not satisfied that the appellant has provided a reasonable explanation for the contradictory information provided by the appellant about his nationality. Notably, despite the appellant’s claim that he had pointed out corrections to be made to the screening interview, there is no evidence, even now, from the appellant’s representatives that he had done so, and more importantly, no evidence in the form of a letter sent to the respondent by the appellant’s representatives correcting any errors before a decision was reached by the respondent. It was not until the appellant’s witness statement dated 11 October 2023 that the appellant made the claim (paragraph 6) that the Home Office had incorrectly recorded what he had said. The judge was required to deal with the appeal on the evidence before the Tribunal and it was plainly open to the judge to conclude that the inconsistencies were not corrected until after the refusal letter with no prior criticism raised about interpretation.
The inconsistencies that were not challenged
19. I reject the claim that the judge failed to consider and/or attach appropriate weight to the fact that the appellant was not challenged about inconsistencies, against the principles of fairness. Whether there is procedural unfairness is fact-sensitive. As I have already set out, from the outset the respondent rejected all the claims made by the appellant regarding the events leading to his departure from Chad or indeed Sudan. The appellant’s credibility was squarely placed in issue in the refusal letter. At paragraph [8] of the decision, the judge noted that the question whether the appellant is credible was an issue in the appeal. In those circumstances it was not incumbent upon the judge to raise with the appellant each of the matters that were of concern to her. Paragraphs [19] to [25] of the decision must be read as a whole and not in isolation. The judge was not obliged to shut her mind to obvious points of contradiction such as those identified in the decision. The judge considered the claims made by the appellant and the consistency (or otherwise) of the accounts given by the appellant at different points in time in relation to material matters.
20. In general a party is required to challenge in cross-examination the evidence of any witness if the evidence should not be accepted on that point. That general rule should not be applied rigidly. Its application depends upon the circumstances of the case and the criterion is the overall fairness of the hearing. Here, there were a number of obvious inconsistencies in the appellant’s account of events, some of which had been highlighted by the respondent in the respondent’s decision to refuse the claim. The burden rests with the appellant and the inconsistencies could have been addressed in the written and oral evidence of the appellant without the judge specifically raising any concerns she had when looking at the wide canvas of evidence holistically.
Credibility findings
21. I also reject the claim that the judge erred in making adverse credibility findings regarding the appellant’s nationality, the location of his wife and children and his claim that he had been detained. Reading the decision as a whole, it is clear that the judge addressed and assessed the claims made by the appellant and having considered the claims she rejected them. There was here, no procedural unfairness.
22. The respondent accepted the appellant is a national of Chad and his nationality was not in issue. That is not to say that the judge was required to disregard entirely, the appellant’s initial claim that he was from Sudan, having been born in Darfur. The judge noted the appellant had claimed in his first witness statement that he had dual Sudanese and Chad citizenship before conceding in his oral evidence that he has never held Sudanese citizenship.
23. The Upper Tribunal should not overturn a judgment at first instance unless it really cannot understand the original judge's thought process when the judge was making material findings. Reading the decision as a whole, it is in my judgement clear that in reaching his decision, the judge considered all the evidence before the Tribunal in the round and reached findings and conclusions that were open to her on the evidence. The decision is to be read looking at the substance of the reasoning and not with a fine-tooth comb in an effort to identify errors.
24. The judge identified the core issues in this appeal as set out by the parties. I am satisfied that standing back, reading the decision as a whole, the judge's decision was based upon the evidence before the Tribunal. Although "error of law" is widely defined, it is not the case that the Upper Tribunal is entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed or another judge can produce a better one. Baroness Hale put it in this way in AH (Sudan) v SSHD at [30]:
"Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently."
25. It is now well established that it is necessary to guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if the judge who decided the appeal had the advantage of hearing oral evidence.
26. I accept, as Mrs Arif submits, that in reaching her decision, the judge carefully considered the claims made by the appellant and set out a number of concerns regarding the core of the appellant’s account. The judge found the appellant’s evidence to be vague, lacking in detail, and inconsistent, regardless of the standard of proof applied. It was in my judgement open to the judge to reject the appellant’s account of events for the reasons set out in her decision and to find, as she did at paragraph [34] of her decision that the appellant has not established that he does in fact fear persecution in Chad as a result of his claimed political opinion.
27. I simply add, for the sake of completeness that I also reject the claim made in the grounds of appeal (Ground 3) that the judge erred in finding the appellant not credible with regard to the lower standard of proof that is applied in Humanitarian Protection and Article 2 and 3 of the ECHR appeals for the same reasons.
28. With respect to the submissions of Mr Fitzsimons, the appellant has not demonstrated that the judge’s findings of fact, and consequential analysis, involved the making of an error of law.
Conclusion
29. Reading the decision as a whole it is clear in my judgment that judge has said enough to show that care has been taken and that the evidence as a whole has been properly considered in reaching the decision that the appellant has not established, even to the lower standard, and thus not on the balance of probabilities, that he does in fact fear persecution in Chad on account of his claimed political opinion.
30. The judge set out the building blocks of the reasoned judicial process by identifying the issues which need to be decided, the evidence which bears on those issues, and giving perfectly adequate and proper reasons for the findings and conclusions reached. Standing back, on a proper reading of the decision, it is clear what conclusions were reached by the judge and why the appeal was decided as it was.
31. It follows that there is no material error of law in the decision of the FtT and I dismiss the appeal.
Notice of Decision
32. The appeal to the Upper Tribunal is dismissed.
33. The decision of First-tier Tribunal Judge Hutchinson dated 3 February 2025 stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 December 2025