Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001268

First-tier Tribunal No: PA/52827/2024
LP/05805/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 August 2025

Before

UPPER TRIBUNAL JUDGE BULPITT
AND
UPPER TRIBUNAL JUDGE PINDER

Between

PSC
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Vokes, Counsel instructed by Vyman Solicitors
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 21 May 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his family members are 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 or his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The appellant is 36 years old. On 26 September 2022, he claimed asylum in the United Kingdom stating that he is PYT, was born in 1986 in Afghanistan and that he fears persecution in that country because of his Sikh religion. The respondent does not believe that the appellant is PYT from Afghanistan concluding instead that he is JS (both names initialised for the purposes of anonymity), born in 1988 and from India. On that basis, the respondent refused the appellant’s asylum claim being satisfied that he would not face persecution because of his Sikh religion in India.
2. The reasons for the respondent’s refusal include the respondent’s assessment that the appellant displayed a lack of knowledge of Afghanistan, that he gave inconsistent information about his own name and nationality between his screening and substantive interviews and the respondent’s reliance on a successful visa application the appellant submitted to the Irish embassy in India. The latter included the appellant’s photograph, his name as JS, with a date of birth in 1988, a country of birth of India and contact details in India. The visa application was also supported by an Indian passport, issued in India, in the name of JS and bearing the appellant’s photograph . The respondent considered the procedures likely involved with this visa application and the fact that the appellant secured this visa, ultimately using it to travel to Ireland and from there to the United Kingdom. The Respondent concluded that JS was likely to be the appellant’s true identity and his true nationality was Indian.
3. The appellant appealed against that decision to the First-tier Tribunal and the appeal was heard by a panel consisting of First-tier Tribunal Judge K Dobe and First-tier Tribunal Judge G Clarke (‘the panel’) on 14 November 2024. On 5 December 2024, the panel issued their decision in which they found on balance that the appellant is from India and that he did not have a well-founded fear of persecution in his home country. The appeal was therefore dismissed.
4. The appellant now appeals against the panel’s decision to this Tribunal having being granted permission to do so by Upper Tribunal Judge Sheridan who observed that it was arguable that the panel applied the wrong standard of proof when determining the appellant’s nationality.
5. The parties being agreed (as they were at first instance) that the appellant’s protection claim falls to be considered under the provisions of the Nationality and Borders Act 2022 (‘the 2022 Act’), this appeal raises issues about the correct standard of proof to be applied when considering an appellant’s nationality in the context of a protection claim made after the coming into force of the 2022 Act. The appellant asserts that the lower standard of proof applies, namely that of a reasonable degree of likelihood, while the respondent asserts that the balance of probabilities applies.
6. We have maintained the anonymity order in respect of the Appellant. We consider that on the specific facts of this appeal, the maintenance of the integrity of the United Kingdom’s immigration system and the Appellant having raised a claim to international protection, are such that an anonymity order is a justified derogation from the principle of open justice.
Legal Framework
7. By virtue of section 84 Nationality Immigration and Asylum Act 2002 (‘the 2002 Act’), there are three grounds of appeal against the refusal of a protection claim:
(a) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;
(b) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
The Refugee Convention
8. The Refugee Convention is the 1951 Geneva Convention Relating to the Status of Refugees which, so far as is relevant, defines a refugee at Article 1(A)(2) as a person who:
“…owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country…
In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, her has not availed himself of the protection of one of the countries of which he is a national”
9. Article 33 of the Refugee Convention prohibits a contracting state from expelling or returning a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Nationality and Borders Act 2022 (‘the 2022 Act’)
10. Sections 31 – 35 of the 2022 Act came into force on 28 June 2022 and apply, in respect of any protection claim made on or after that date. By virtue of section 30, these sections apply for the purposes of the determination by any person, court or tribunal of whether a person (asylum seeker) is a refugee within the meaning of the Refugee Convention.
11. Section 31 defines for the purpose of a determination of whether an asylum seeker is a refugee, who persecution can be committed by, and what persecution involves, including some examples of the forms that the persecution may take.
12. We set out section 32 in full given its relevance to the issues we must consider in this appeal:
32 Article 1(A)(2): well-founded fear
(1) In deciding for the purposes of Article 1(A)(2) of the Refugee Convention whether an asylum seeker's fear of persecution is well-founded, the following approach is to be taken.
(2) The decision-maker must first determine, on the balance of probabilities—
(a) whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the asylum seeker does in fact fear such persecution in their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) as a result of that characteristic.
(See also section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (asylum claims etc: behaviour damaging to claimant's credibility).)
(3) Subsection (4) applies if the decision-maker finds that—
(a) the asylum seeker has a characteristic mentioned in subsection (2)(a) (or has such a characteristic attributed to them), and
(b) the asylum seeker fears persecution as mentioned in subsection (2)(b).
(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and
(b) they would not be protected as mentioned in section 34.
(5) The determination under subsection (4) must also include a consideration of the matter mentioned in section 35 (internal relocation).
13. Section 33 relates to the reasons for persecution identified within Article 1(A)(2) of the Refugee Convention. Of relevance to the issue in this appeal, section 33 includes at sub-section 1(c) that:
“The concept of nationality is not confined to citizenship (or lack of citizenship) but may include consideration of matters such as membership of a group determined by its cultural, ethnic or linguistic identity, common geographical or political origins or its relationship with the population of another state”
14. Sections 34 and 35 deal with protection from persecution and internal relocation respectively and are not relevant to the issues raised in this appeal.
15. This Tribunal considered the interpretation and application of section 32 in JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC). In JCK, Upper Tribunal Judge Bruce set out that there are five questions included in section 32 and that these should be addressed in the order in which they appear. These questions are helpfully re-framed and re-produced at paras 3-5 of the head-note:
Question 1 is whether, on the balance of probabilities, the claimant has a characteristic which could cause them to fear for one of the five reasons set out in the Refugee Convention. In simple terms: is there a Convention reason?
Question 2 is whether, on the balance of probabilities, the claimant "does in fact fear" such persecution. This is the 'subjective fear' test.
Questions 3-5 are matters of objective evaluation and must each be determined on the lower standard of proof: 'a reasonable degree of likelihood'. Is it reasonably likely that there is:
- a risk of harm
- an absence of state protection, and
- no reasonable internal flight alternative
16. Concerning sub-section 32(2)(b), Upper Tribunal Judge Bruce stated at [17] that:
17. The provision simply requires the decision maker to consider whether the asylum seeker “does in fact fear”: it is what is otherwise referred to as the ‘subjective fear’ test. 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.
17. Judge Bruce summarised her conclusions on section 32 at [25] of her decision:
“25. The proper approach to s32 is then to address each question expressly and sequentially. If a matter is agreed, that simply needs to be recorded by a single sentence. Addressing each question under a separate heading will aid decision-makers in identifying matters in issue between the parties, and setting out competing arguments and conclusions. Moving between the varying standards is an intellectual exercise which will require discipline, but it does not, cannot, change what decision-makers have always done in taking an ultimate, holistic view of the evidence. It is not possible to evaluate subjective fear – and in many cases Convention ground – without having some regard to the context in which that fear is said to arise. Decision makers will therefore need to consider the country background material twice over. In evaluating the matters raised in s32(2) that material will provide vital context to deciding whether, on a balance of probabilities, the tests are met. The decision-maker must then revisit that material afresh when considering s32(4), and apply the lower refugee standard of proof to the question of risk. This may prove laborious, but it is necessary in order to avoid conflating the matters of subjective fear and actual risk, or conversely, to avoid overlooking important context.
18. Judge Bruce observed at [26] that even where the earlier conditions provided for in section 32(2) are not met, a “belt and braces” approach that still goes on to consider and decide the rest of section 32 is sensible in cases of onward appeal rights.
19. In JCK, the appellant’s claim was based on the risk of persecution that he would face as a born again Christian in Botswana as well as for his imputed political opinion and race. His claim had been rejected by the Secretary of State but she accepted that he was a born again Christian and member of a tribe as claimed. The Secretary of State did not accept however that he would face persecution for those reasons, and even if he did, her position was that the appellant would have sufficiency of protection or could relocate internally within Botswana. The matters in dispute therefore considered by the Upper Tribunal in JCK were grounded in the second assessment to be undertaken in section 32(4) relating to the risk of persecution as a result of the characteristic and whether there would be protection.
Disputed nationality
20. Since the appellant’s claimed nationality is disputed by the respondent in this appeal, we consider it helpful to summarise the guiding authorities thus far on the issue of disputed nationality. In this respect, we were greatly assisted by Mr Terrel, on behalf of the Respondent, who set these authorities out in his skeleton argument.
21. There is a long line of authorities in which the approach to disputed nationality claims (including disputed statelessness) was considered. This includes Hamza [2002] UKIAT 05185, MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, Abdullah v Secretary of State for the Home Department [2013] EWCA Civ 42, finishing with RM (Sierra Leone) v Secretary of State for the Home Department [2015] EWCA Civ 541.
22. In RM (Sierra Leone), Underhill LJ reviewed those earlier authorities referred to directly above at [31]-[34] before concluding at [35]-[36] as follows:
“35. What emerges from those cases – and would in truth be clear enough even in the absence of authority – is that what standard of proof applies to the question of an applicant's nationality depends on the legal issue to which it is relevant. If it is relevant to whether he will suffer persecution (whether by reference to the Refugee Convention or article 3), the lesser standard will apply. But if it is relevant to some other issue – such as whether it is in fact possible in practice for him to be returned, and any rights that may accrue if it is not – the standard is the balance of probabilities.
36. That then brings us back to the question discussed at para. 21 above, namely for what purpose (or purposes) the Tribunal was obliged to determine the Appellant's nationality. As we have seen, this does not seem to have been explicitly identified at the time. However, I can see no basis on which it was relevant to the issue of risk of persecution. The risk that the Appellant asserted that he would be persecuted as a homosexual did not depend on whether he was a Nigerian national; and in any event the Tribunal concluded that there was no reasonable likelihood that he was a homosexual. (…)”
23. The authorities referred to above all pre-date the coming into force of sections 30-35 of the 2022 Act. We can see however that even prior to the 2022 Act, the Court of Appeal confirmed in RM (Sierra Leone) that the issue of a person’s nationality would fall to be considered on the balance of probabilities if that issue was not relevant to the disputed issue of whether or not the person will suffer persecution.
The decision of the First-tier Tribunal
24. The panel recorded at [10] of their decision that the respondent accepted that if the appellant were a national of Afghanistan, he would be at real risk of persecution by reason of his religion, would not be protected from persecution within Afghanistan and would not be able to benefit from a viable internal relocation option.
25. At [11], the panel went on to record the following:
“The parties agree that the following issues remain in dispute:
(a) Asylum: On balance, whether the appellant in fact fears persecution due to his religion. This turns on whether the appellant is a national of Afghanistan.
(b) Humanitarian protection: has the appellant established substantial grounds for believing that he would face a real risk of suffering serious harm in his country of origin? This turns on the Afghanistan/India issue.
(c) Family or private life:
(i) We must resolve the following legal issue under the Immigration Rules: for the purposes of 276ADE(1)(vi), would the appellant face “very significant obstacles” to his integration into India?
(ii) If he would not, are there exceptional circumstances in the appellant’s case which would render refusal a breach of Article 8 of the ECHR because it would result in unjustifiably harsh consequences for the appellant upon his return to India?”
26. The panel also directed itself at [18]-[19] to JCK setting out the questions that it must determine, in line with the Upper Tribunal’s guidance in that appeal.
27. The panel then identified that the key issue was whether the appellant is from Afghanistan, in which case - the panel observed – his claim would succeed. At [24]-[43], the panel considered in detail the parties’ competing evidence and submissions on the issue of the appellant’s disputed nationality. The panel reminded itself at [44] that the onus rested on the appellant to establish on a balance of probabilities that he is from Afghanistan and ultimately, the panel concluded in the same paragraph against the Appellant.
28. Amongst other matters, the panel listed at [44] the Indian passport and Irish visa evidence, which in the panel’s judgment strongly pointed to the appellant being a national of India. The panel accepted the respondent’s evidence that the Indian passport had been used to obtain the Irish visa in circumstances where the appellant would have had to attend the Irish consulate in person and would have provided his own biometric information. The panel considered that the appellant’s answers to questions about the circumstances surrounding this aspect of the case were not credible.
29. Accordingly, the panel did not accept that the appellant is from Afghanistan and found that he is an Indian national. The panel subsequently dismissed the appellant’s protection claim, including under Article 3 ECHR with the latter not having been argued before the panel as raising separate considerations.
30. At [46]-[69], the panel went on to consider the appellant’s alternative claim under Article 8 ECHR, also finding against him and dismissing this. We do not summarise this aspect of the appellant’s appeal any further since no challenge is raised by the appellant against those findings before this Tribunal.
The appeal hearing in the Upper Tribunal
31. The grounds of appeal to the Upper Tribunal, which were not drafted by Mr Vokes, are unhelpful and are not consistent with the guidance that has subsequently been reiterated in Rai and DAM (Grounds of Appeal; Limited Grant of Permission) [2025] UKUT 00150 (IAC). Instead of clearly and succinctly identifying the asserted error of law in numbered grounds of appeal by reference to relevant passages of the panel’s decision the grounds repeat complaints about the decision under different subheadings. It is unfortunate that there is no engagement in the grounds with the application of the 2022 Act, nor with how the panel framed the issues in dispute as agreed between the parties at the hearing. Instead the grounds refer to the asylum standard of proof without any reference to 2022 Act. The provisions of the 2022 Act have been in force for some three years now and it is essential that those providing legal advice and representation in the field of refugee law update themselves and work within the current statutory scheme, when this applies.
32. Mr Vokes helpfully refined the appellant’s grounds of appeal in his skeleton argument dated 10 May 2025 and further in his oral submissions, narrowing the grounds to two complaints which he pursued before us and which we formulate as follows:
(i) that the panel misapplied section 32 of the 2022 Act and as a result adopted the wrong standard of proof when considering the appellant’s nationality, and
(ii) that the panel erred in their assessment of the appellant’s nationality.
33. Mr Terrell similarly, having provided in advance a skeleton argument which sought to address each subheading raised in the grounds of appeal, tailored his oral submissions to these two complaints. We adopt the same approach and will consider each of the two fundamental complaints being made about the panel’s decision in turn. We are grateful to both advocates for their considered written and oral submissions.
34. A consolidated bundle was filed and served by the appellant’s solicitors, which included fresh evidence and an application to admit the same under Rule 15(2A). Mr Vokes confirmed at the outset that he was not seeking to make this application and rely on the fresh evidence for the purposes of establishing the purported errors of law in the panel’s decision. Mr Vokes agreed to re-visit this therefore subject to the outcome of the appellant’s appeal in this Tribunal.
The 2022 Act and the appropriate Standard of Proof
The Parties submissions
35. On behalf of the appellant, Mr Vokes submitted by reference to JCK that a sequential approach to the appellant’s asylum claim is required by section 32 of the 2022 Act, with five questions to be answered in sequence as identified at paragraph [15] above.
36. Mr Vokes argued that the question of an appellant’s nationality should be considered when answering the Question 3, using the numbering in JCK, namely the question under section 32(4)(a) of the 2022 Act. In the appellant’s case, Question 3 would involve determination of whether there is a reasonable likelihood that, if he were returned to his country of nationality, the appellant would be persecuted as a result of his Sikh religion. Mr Vokes argued that if the question of nationality were resolved at the earlier stage of sections 32(2)(a) and (b) (i.e. under Questions 1 or 2 as identified in JCK), the practical result would be an appellant, such as in this appeal, would impermissibly have his whole asylum claim determined on the balance of probabilities. Mr Vokes submitted that considering nationality within Questions 1 and 2 (s32(2)(a) of (b)) would involve applying the balance of probabilities to an assessment of the appellant’s credibility on the issue of his nationality. He submitted that this would be inconsistent with the Upper Tribunal’s guidance set out at [17] of JCK, extracted above at [16] above.
37. On behalf of the respondent, Mr Terrell reminded us of the principle set out in the pre-2022 Act case of RM (Sierra Leone) which we have cited at [22] above.
38. Mr Terrell then submitted that section 32 of the 2022 Act mandated the order in which issues are to be resolved when seeking to determine whether an asylum seeker is a refugee under the Refugee Convention. He argued that the effect of section 32(3) is that the question of whether there is a reasonable likelihood of a person facing persecution in the country of their nationality only arises if the person has already been found on the balance of probabilities to (a) have a characteristic that could cause them the fear persecution and (b) does in fact fear such persecution in their country of nationality.
39. In these circumstances Mr Terrell argued that, similar to the approach prior to the 2022 Act, the standard of proof that applies when determining nationality depends on the legal issue to which the person’s nationality is relevant. The appellant in this matter did not fear persecution on account of his nationality but on account of his religion. Mr Terrell went on to submit that applying section 32 as it is drafted, the issue of an asylum seeker’s nationality will always be relevant to Question 2 as identified in JCK, namely the question posed at section 32(2)(b) of whether the asylum seeker does in fact fear such persecution in their country of nationality
40. Mr Terrell submitted therefore that the issue of nationality will necessarily fall to be considered on the balance of probabilities. In his submission, it was clear as a matter of simple interpretation of the matters listed at section 32(2), and the order in which that these were listed, that the issue of a person’s nationality needs to be determined on the balance of probabilities. Such an interpretation was also strengthened, in Mr Terrell’s submission, by the earlier jurisprudence in appeals where nationality was disputed and fell to be determined outside of the issues relevant to the fear of persecution claimed, as we have considered above.
Our Analysis and Conclusions
41. We have no hesitation in concluding that the principle identified in RM - that the correct standard of proof to be applied in a case where nationality is disputed depends on the issue to which nationality is relevant - applies as much after the implementation of the 2022 Act as it did before that Act was brought into force. In RM, the appellant’s claim was that he feared persecution because of his sexuality and in those circumstances the question of his nationality went to the issue of feasibility of removal and not to risk on return. At [36] Underhill LJ stated:
“I can see no basis on which [the appellant’s nationality] was relevant to the issue of risk of persecution. The risk that the Appellant asserted that he would be persecuted as a homosexual did not depend on whether he was a Nigerian national” (our emphasis).
That being so Underhill LJ stated that it was the balance of probabilities rather than “the asylum standard” of proof that applied.
42. Mr Vokes’ complaint - that deciding nationality on the balance of probabilities in the appellant’s case meant that in practice the “whole of the appellant’s asylum claim” would be resolved applying that standard of proof - could equally have been made in the case of RM but misses the point. The fact that a person is an asylum seeker does not mean and never has meant that every disputed issue must be resolved on the lower “asylum standard” of proof. It is only where the disputed issue goes to the risk of persecution that the lower standard historically has applied. As RM makes clear, there have always been disputed issues in a claim raised by an asylum seeker which have fallen to be resolved applying the balance of probabilities.
43. This is also clear in the context of the grounds of appeal available to an appellant in a protection appeal. As section 84 of the 2002 Act makes plain (extracted at [7] above) the Tribunal is required to consider whether “the removal of the appellant from the United Kingdom” will breach the United Kingdom’s obligations under the Refugee Convention, the UK’s obligations to provide Humanitarian Protection and/or the obligations under section 6 Human Rights Act.
44. In RM the proposed removal was to Nigeria so the question was whether removal there would breach the United Kingdom’s obligations listed in section 84. Here, the question is whether the proposed removal to India would breach those obligations. In that context and where there is no suggestion that an Afghan national would be at risk in India by reason of his nationality, the question of whether the appellant is an Indian or an Afghan national is not relevant to the issue of risk of persecution. RM established, pre-2022 Act, that the key factor for determining the standard of proof that applied to a disputed issue raised by an asylum seeker is whether that issue was relevant to risk. If it is then the “asylum standard” would apply but if it is relevant only to feasibility of return then the balance of probabilities applied.
45. In our view the approach of Underhill LJ in RM has, whether by design or otherwise, in effect been codified in the structure of the 2022 Act. That structure involves first resolution of the two questions (1) whether the asylum seeker has a characteristic which could cause him to fear persecution and (2) whether the asylum seeker does in fact fear such persecution in their country of nationality as a result of that characteristic, on the balance of probabilities. Only if the first two questions are answered affirmatively does it then require considerations of risk of persecution to be resolved applying the “asylum standard” of reasonable likelihood.
46. It follows therefore that following the implementation of the 2022 Act, the standard of proof to be applied where there is a dispute about a person’s nationality in a protection claim, depends on where in the structured approach identified in the 2022 Act and summarised in JCK the issue falls to be considered.
47. In some cases, a person’s nationality will be relevant to the question posed in s32(2)(a) (Question 1 in JCK) and whether the asylum seeker has a characteristic which would cause them to fear persecution “for reasons of …nationality”. Historical examples of such cases have included a claimed fear of persecution by an undocumented Bidoon in Kuwait, where it is disputed that the person is of Bidoon ethnicity as was the case in NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356(IAC). Similarly, there have also been cases involving disputed Rwandan nationality or heritage where the proposed return is to the Democratic Republic of Congo and a claimed risk of persecution is raised as a result of the connections to Rwanda (a state considered by the DRC to be hostile towards it), as considered in VL (Risk-Failed Asylum Seekers) Democratic Republic of Congo CG [2004] UKIAT 00007. In such cases the dispute as to nationality will now need to be resolved applying the balance of probabilities as required by s32(2)(a) of the 2022 Act.
48. In cases such as the one before us, where nationality is not relevant to section 32(2)(a) because the parties agree that the appellant has the characteristic claimed (religion), Question 1 is answered affirmatively without consideration of nationality. It is then necessary to move on to s32(2)(b) and Question 2, namely whether the asylum seeker does in fact such persecution in their country of nationality.
49. We are satisfied that the clear and unambiguous wording of the Act means that, if it has not already been resolved, a dispute about an asylum seeker’s nationality must be determined at this second stage of a decision maker’s consideration. That is because sub-section 32(2)(b) requires consideration of whether the appellant “does in fact fear such persecution in their country of nationality”. Whilst the question posed in s32(2)(b) does therefore, as described in [17] of JCK, require the decision maker to consider the asylum seeker’s claim to have a subjective fear of persecution, the nature of the question requires that to be considered in a factual context. This will in some cases involve resolving a dispute over the country of nationality. .
50. Specifically therefore, an asylum seeker’s country of nationality is an intrinsic part of the issue to de determined in s32(2)(b). It is not possible to determine an applicant’s claimed subjective fear without also determining objectively the their country of nationality. In the majority of cases, the country of nationality will not be disputed, meaning a decision-maker will swiftly and imperceptibly move directly to assessing the person’s claim to have a subjective fear of persecution for a convention reason in that country. In the appellant’s case however, this contextual objective factor was recognised to be the key matter when considering whether the appellant does in fact fear persecution in his country of nationality. As we have already noted above at [25], this was expressly recorded by the FtT at [11] of the panel’s decision following the parties’ agreement as to the issues in dispute.
51. It was therefore impossible for the panel to answer the question posed by s32(2)(b) of the 2022 Act without considering the evidence about the disputed issue of the appellant’s nationality and reaching a conclusion about the credibility of the appellant’s claim to be from Afghanistan. The issue of the appellant’s nationality was directly relevant to the question of whether he has a subjective fear of persecution in his country of nationality. It was a matter of law and precedent fact that had to be resolved in order to assess the appellant’s claim to have a subjective fear of persecution. As it is an issue that had to be resolved at this stage of the decision making process on the terms of the 2022 Act, it therefore had to be resolved applying the balance of probabilities.
52. We were unpersuaded by Mr Vokes’ argument that considering the matter in this way would be inconsistent with [17] of JCK and his suggestion that ‘credibility’ is something that should be considered in the assessment of risk that takes place in the latter stages of the structured approach applying the lower standard of proof. We consider this argument treats ‘credibility’ as having some form of special technical meaning in an asylum case in the way Underhill LJ warned against at [127] of MN & IXU v Secretary of State for the Home Department [2020] EWCA Civ 1746:
“127. We would add one further point about language. The term “credibility” is used a good deal in the context both of asylum appeals and of decisions whether a person is a victim of trafficking, and we have detected a tendency to treat it as having some special technical meaning. But in truth it connotes no more than whether the applicant’s account is to be believed. In making that assessment the decision-maker will have to take account of all factors that may bear on that question.”
53. The reality is that in order to determine the question posed in section 32(2)(b) of the 2022 Act, where an asylum seeker has claimed that he does fear persecution in his country of nationality, the decision-maker is required to consider the truth of that claim. The suggestion that ’credibility‘ should not be considered at this stage is artificial and misconstrued. In this case, it was simply impossible for the panel to make an assessment of whether the appellant in fact fears persecution in the country of his nationality without assessing whether the appellant was telling the truth when he maintained his country of nationality was Afghanistan.
54. As identified in MN and IXU, when making an assessment of the truth of the asylum seeker’s claim on a particular issue - here his country of nationality - the decision-maker must take account of all the factors that may bear on that question and must consider all the evidence in the round. That evidence will often (though not necessarily) include the asylum-seeker’s account of past events. It may also include alternative evidence, which calls into question the asylum seeker’s account. Because it is relevant to the question posed in section 32(2)(b) of the 2022 Act, consideration of the truth of an asylum seeker’s claim to in fact fear persecution in the country of his nationality, must be determined on the balance of probabilities.
55. Contrary to Mr Vokes’ submissions, we do not consider this conclusion to be inconsistent with the Tribunal’s guidance in JCK and in particular the reference at the end of [17] to the matter of credibility being considered “where it belongs in the refugee risk assessment”. Elsewhere in that paragraph Judge Bruce explicitly identified that whilst there will be some cases where answering the question posed in sub-section 32(2)(b) will not involve an assessment of whether past events occurred: “(t)here 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’” (our emphasis). The appellant’s is one such case (as indeed was JCK’s) where an assessment of the truth of the asylum seeker’s claims about past events was unquestionably relevant to whether he does in fact fear persecution in his country of nationality.
56. Neither do we consider the panel to have erred, as Mr Vokes also argued, by failing to take the “belt and braces” approach commended by Judge Bruce in JCK and which involves going on to consider the questions posed at s32(4) of the 2022 Act, even if it has been found that an appellant does not in fact fear persecution because of a characteristic in their country of nationality. Whilst there might be some cases where doing so will be helpful in the event of onward appeals, the “belt and braces” approach is not a requirement and it will not likely be an error for a Tribunal to end their consideration of the sequential process established in section 32 if they find the appellant does not in fact fear persecution in their country of nationality. We do not understand Judge Bruce to have said otherwise. Indeed in this case the “belt and braces” approach would have been completely unnecessary since there was never any suggestion that the appellant would face a risk in India as a result of his religion and there was agreement between the parties that there would be a reasonable likelihood of him facing persecution for his religion if his country of nationality was Afghanistan.
57. Bringing this all together, we conclude that the framework set out in section 32 of the 2022 confirms that when considering a protection claim different standards of proof will apply depending on the issue being considered. A dispute about an asylum seeker’s nationality may fall to be considered under s32(2)(a) of the 2022 Act but will invariably fall to be considered under s32(2)(b) of the 2022 Act. That is because that subsection requires determination of whether the asylum seeker in fact fears persecution in their country of nationality and therefore consideration of whether the asylum seeker has a subjective fear of persecution must take place in a factual context that includes the asylum seeker’s country of nationality. Whether it falls to be considered under the first or second limbs of s32(2), a dispute about an asylum seeker’s nationality will need to be determined on the balance of probabilities. Answering the two questions posed in s32(2) of the 2022 will often (although not inevitably) involve making an assessment of the truthfulness or otherwise, on the balance of probabilities, of an asylum seeker’s claim to have characteristic(s) covered by the Refugee Convention and a subjective fear of persecution on those ground(s) in their country of nationality. Each of these elements are covered by s32(2) and the civil standard of proof.
58. Applying this to the appellant’s case, we are satisfied that the agreed position in the First-tier Tribunal was correct, namely the question of the appellant’s nationality fell to be determined on the balance of probabilities. The panel did not err in law therefore by considering the appellant nationality on the balance of probabilities.
The panel’s assessment of the appellant’s nationality
The Parties Submissions
59. Firstly, Mr Vokes very fairly acknowledged that these proceedings were perhaps more unusual than others as there was strong evidence on both sides of the issue of contested nationality. The evidence considered is listed in summary at [17] by the panel and assessed in detail by them at [24]-[44] over some four and a half pages. Mr Vokes wisely did not pursue some of the matters raised in the written grounds of appeal, in particular the assertion at [8] of the grounds that the panel’s finding that the appellant is Indian was irrational and the unfounded assertion in the same paragraph that the panel reversed the burden of proof and required proof of nationality “beyond doubt”. Neither did Mr Vokes pursue the assertion at [9] of the grounds that the panel failed to consider country guidance about Afghanistan which again was a sensible approach given it is clear that the panel did not proceed to consider risk on return to Afghanistan in light of their finding that the appellant is in fact Indian.
60. Expanding on the other matters raised in the grounds of appeal however, Mr Vokes advanced a number of different ways in which he argued the panel had erred when assessing the appellant’s nationality, arguing that:
• the panel gave insufficient weight to material evidence, specifically the letters from the Gurdwara Guru Nanak Darbar/Afghan Ekta Cultural Religious Community Centre in Southall and the Khalsa Diwan Afghanistan;
• the panel failed to properly consider the significance of the DNA evidence between the appellant and his half-brother, who has been recognised as a refugee by the Respondent as an Afghan Sikh and failed to properly apply the principles of benefit of the doubt, with reference to the UNHCR Handbook paras 196-197;
• the panel failed to assess the appellant’s credibility in line with established asylum law principles, including the internal consistency of the appellant’s account, the appellant’s linguistic ability, cultural knowledge, and lived experiences—all of which, it is submitted, were material to his nationality and asylum claim. It is further stated that the panel failed to recognise that inconsistencies or evidential gaps should not automatically undermine credibility (HK v Secretary of State for the Home Department [2006] EWCA Civ 1037) and a holistic and anxious scrutiny approach is required.
61. In reply Mr Terrell also recognised that there was a lot of evidence before the panel and that the evidence pointed both towards the appellant being from India and from Afghanistan. Mr Terrell argued however that the panel provided a detailed decision in which they gave consideration to the letters from the Gurdwaras, the DNA evidence and the appellant’s credibility. Mr Terrell submitted that the panel was rationally entitled to attach the weight they did to these different pieces of evidence and ultimately, to find that the appellant was not a national of Afghanistan and likely to be a national of India.
62. Lastly, Mr Terrell referred to Hussein & Anor (Status of passports: foreign law) Tanzania [2020] UKUT 250 (IAC)), which established that a person who had been issued a genuine passport that had not been falsified or altered, must be regarded as a national of the State that issued the passport. Mr Terrell argued that this authority was relevant to this appeal since the respondent had relied on the Indian passport that had been issued to the appellant in the identity of JS and with which, on the appellant’s own case, he had been able to obtain an Irish visa and subsequently travel to Ireland.
Our Analysis and Conclusions
63. As can be seen from the summaries above, the appellant’s remaining grounds of appeal largely concern the weight the panel attached to various aspects of the evidence before them as well as the adequacy of the reasons given. Thus, we remind ourselves of relevant guidance for the approach that we are to take when reviewing the panel’s decision. First, in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 there is a useful summary of relevant principles at [26], which are relevant to this appeal:
26. Sections 11 and 12 TCEA 2007 Act restricts the UT's jurisdiction to errors of law. It is settled that:
(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it 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] 1 AC 678 at paragraph [30];
(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];
(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];
(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];
(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];
(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].
64. A number of relevant principles were also summarised in Volpi & Anor v Volpi [2022] EWCA Civ 464 at [2]:
“2. (…) The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
65. We agree with Mr Terrell that the panel was rationally entitled to attach minimal weight to the letters from the Gurdwaras for the reasons given at [24]. The panel explained there the reasons for the minimal weight attached: the author had not attended the appeal hearing and was not called as a witness. Thus, their evidence was not tested by the respondent and considering that this was a central issue to the appellant’s claim, it cannot be said that it was irrational for the panel to reach this conclusion nor that the reason given was inadequate. We also note in passing that this letter is addressed to the appellant in his identity of JS, which he disputes but which he nevertheless seemingly continues to use.
66. This also applies to the letter from the Khalsa Diwan Afghanistan, which here is addressed to the appellant as PSC. In respect of this letter, the panel also gave further reasons at [25] for attaching minimal weight to it. These included that whilst the author is said to have interviewed the appellant confirming that he speaks Kabuli Punjabi (supporting his claim to be Afghani), the letter referred to another female person by name in the body of the letter who had no connection to the appellant. This suggested, in the panel’s view, that the letter was generic and not bespoke to the appellant’s case and circumstances. There is no engagement with these reasons from the appellant in his grounds of appeal. We also note that apart from the subject-head, the appellant is not named (as noted also by the panel) and he is otherwise referred to as “the captioned person/the above person”.
67. In relation to the DNA evidence, the panel recognised that this was “important evidence” that assisted the appellant’s case at [31] and [44]. However, we accept the Respondent’s submission that that evidence was not determinative. The DNA evidence was supportive of the appellant’s case that the witness and recognised refugee is the appellant’s half-brother. It was not however inherently implausible that the appellant would, as an Indian national, have a half-brother, who held a different nationality to him. Mr Vokes argued that at [28], the panel recorded attaching some weight to the evidence of the appellant’s half-brother but the difficulty was that the panel did not specify how much and whether or not his oral evidence was accepted. It is well established from the above-extracted guidance that matters of weight are ordinarily for the trial judges. It is also clear from [28] and [44] that the panel accepted that the witness was the appellant’s half-brother and that the witness was from Afghanistan but rejected the witness’ evidence that the appellant was also Afghani for the reasons given by the panel within [24]-[42] and summarised and drawn together at [44].
68. There is also considerable force in Mr Terrell’s submission that in a case in which there may not have been any contrary evidence as to an appellant’s asserted nationality, the DNA evidence presented by the appellant may well have been sufficient but this was not the case with this appeal at first instance. As noted by the panel, there was also “strong evidence” that the appellant was a national of India, consisting of - but not limited to - an Indian passport issued to him. Furthermore, this was a passport that the appellant had not asserted to be false, merely stating that he did not know whether it was genuine, and it had been used in order to successfully obtain a visa to Ireland, which the appellant also successfully used to enter Ireland (see [37]-[42]). As recognised by the Upper Tribunal in Hussein, such evidence is usually determinative of a person’s nationality. The panel also gave very detailed and comprehensive consideration to the appellant’s own account at [32]-[36], which the appellant has not sought to challenge save for pleading in writing general and unparticularised submissions.
69. With regards to the appellant’s submissions about the panel’s assessment of the appellant’s credibility, as we have already noted, this ground includes general submissions only and do not engage with the matters undermining the appellant’s account. The evidence before the Tribunal as to what language(s) the appellant speaks or understands was not consistent (Multan Punjabi as per the appellant’s second witness statement - a language spoken by Sikhs and Hindus in Afghanistan – Punjabi-Indian in his screening interview with a Punjabi-Indian interpreter) and the panel was entitled to treat the evidence as neutral at [26]. The panel further considered the appellant’s knowledge of Afghanistan at [33], assessing a range of factors which supported the appellant’s claim and some of which undermined it.
70. Similarly, we also consider that the appellant’s reliance on the UNHCR Handbook and specifically paras 196-197 to be mis-placed. There the UNHCR provides guidance that ordinarily, the burden of proof rests on the applicant to prove their claim but cautions that in most cases, a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Further, that in such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. This passage concerns the general approach to assessing whether a person is a refugee and is guidance that is uncontroversial in so far as pre-2022 Act protection claims. Specifically, relevant to nationality, the Handbooks states as follows:
“93. Nationality may be proved by the possession of a national passport. Possession of such a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise. A person holding a passport showing him to be a national of the issuing country, but who claims that he does not possess that country’s nationality, must substantiate his claim, for example, by showing that the passport is a so‑called “passport of convenience” (an apparently regular national passport that is sometimes issued by a national authority to non‑nationals). However, a mere assertion by the holder that the passport was issued to him as a matter of convenience for travel purposes only is not sufficient to rebut the presumption of nationality. In certain cases, it might be possible to obtain information from the authority that issued the passport. If such information cannot be obtained, or cannot be obtained within reasonable time, the examiner will have to decide on the credibility of the applicant’s assertion in weighing all other elements of his story.”
71. The above extract would tend to support the panel’s findings and the respondent’s position in these proceedings. There is no support here therefore for the appellant’s grounds.
72. Overall we conclude that the appellant has not identified an error of law in the panel’s assessment of the appellant’s nationality. We find that the panel were rationally entitled to reach the conclusions that the appellant is Indian and that they have provided adequate explanation for that conclusion.
Other matters raised in the hearing
73. For completeness, we address two complaints of Mr Vokes which were raised for the first time at the hearing and which concern the panel’s finding at [43] that the appellant disposed of the (Indian) passport that he used to enter the United Kingdom and the panel’s assessment of the appellant’s Taskira at [30]. As Mr Terrell noted in the hearing, these complaints were not particularised in the appellant’s grounds of appeal though he addressed the submissions in substance nonetheless. Since these submissions do illustrate, on the appellant’s case, how the panel is said to have erred on the issue of nationality, we have also addressed these submissions noting as we have already the deficiencies in the grounds of appeal that were drafted.
74. With regards to the passport, the panel noted at [43] that the appellant’s credibility was damaged because he had disposed of his passport at a time when the was not under the control of any agent. Mr Vokes argued that the panel was mistaken in fact as the evidence before them was that the appellant consistently asserted that it was the agent who had disposed of his passport. Mr Vokes took us to the salient aspects of this evidence: the appellant’s screening interview (p.335 of the bundle) where the appellant stated that “(t)he person who brought me here and left me here, took my passport. I am not sure if that passport is genuine” and the appellant’s statement prepared for the FtT appeal hearing, where the appellant stated as follows:
“My journey into the UK lasted nearly 2 years, I left Afghanistan in 2020/2021 (Cannot remember the exact month and date) I arrived at the UK on 28/03/2022. I can confirm that I did inform the respondent that I was indeed fingerprinted two times on my journey. I also clearly informed them that I travelled with an agent by the name of (X) who had arranged for my passport and visas and upon arriving at the UK these were taken by him. I do not know if the passport or any other document used was genuine or not.”
75. The panel did not refer to the evidence that led to their finding at [43]. In light of the evidence that we were taken to and the lack of detail at [43] to support the panel’s finding, we do accept that the panel appears to have erred in fact and in turn, by making an adverse credibility finding. However, we do not consider that this mistake of fact amounts to an error of law. If we are wrong, we do not consider that it is a material error of law. This is because the panel’s consideration of the rest of the evidence, leading to the panel’s conclusion that the appellant is an Indian citizen and including many other points, which were damaging to the credibility of the appellant’s account on nationality, is not capable of being displaced to a sufficient degree to entail a different outcome. We acknowledge that the threshold for materiality is a high one - the test under ASO (Iraq) v SSHD [2023] EWCA Civ 1282 is whether any court would have been bound to have reached the same decision – but for the reasons above, we do not find that any error in this instance is material.
76. Concerning the Taskira, the panel recorded at [30] that they reminded themselves of the principles set out in Tanveer Ahmed, namely that it is for the appellant to prove that documents relied on are genuine. The panel then recorded that taking all the evidence before them, they found that the appellant had failed to prove the genuineness of the Tazkira. Whilst this is a brief consideration of this document, the panel directed themselves correctly and it is well established that judges do not need to give lengthy reasons nor repeat reasons that are relevant and that they have given elsewhere in their decision. It is necessary to read the decision as a whole and when doing so, we are entirely satisfied that the panel’s reasons for concluding against the appellant on this issue were reasonably open to them on the totality of the evidence before them.
77. Finally, to address a point raised in Mr Vokes’ skeleton argument but not pursued at any length in the hearing, whilst it is correct to say that the panel’s self-direction about the standard of proof at [22] was incomplete as it suggested that the balance of probabilities applies “in asylum and humanitarian protection matters”, the decision must be read as a whole and in the context of the issues as agreed between the parties at the hearing. The panel also recognised the correct test for considering humanitarian protection at [11(b)], [20] and [45] of the decision and it is not arguable to suggest they were not aware of the correct test when considering humanitarian protection. The reality was that the finding that the appellant was Indian was determinative of the appeal just as the parties agreed in the hearing since there has never been a suggestion that the appellant would be at risk in India.
78. For all of the reasons above, we are satisfied that that the panel was entitled to find that the appellant was not a national of Afghanistan and was likely to be a national of India. The appellant’s grounds of appeal are therefore not made out and accordingly, this appeal falls to be dismissed.

Notice of Decision
The appeal is dismissed. The decision of the First-tier Tribunal does not contain an error of law.

Luke Bulpitt
Sarah Pinder

Judges of the Upper Tribunal
Immigration and Asylum Chamber

07.08.2025