Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001364

First-tier Tribunal No: PA/58027/2023 (LP/10454/2024)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th August 2025

Before

UPPER TRIBUNAL JUDGE LANE
DEPUTY UPPER TRIBUNAL JUDGE GRAVES

Between

AN
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Nnamani, Counsel
For the Respondent: Mr Hulme, Senior Presenting Officer

Heard at Field House on 2 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals against the decision (“the decision”) of the First-tier Tribunal Judge (“the judge”), dated 10 February 2025, dismissing the appellant’s appeal against the decision of the respondent of 18 July 2023, refusing his asylum and human rights claim.
2. The appellant appeals against the decision, with permission from the First-tier Tribunal (“the FtT”) granted on 22 March 2025 on grounds 1 to 4 of the 5 grounds which were pleaded, which are briefly summarised below:
Ground 1
“Erroneous application of NABA 2022 and wrong standard of proof.”
3. That that the judge applied the provisions of the Nationality and Borders Act 2022 (NABA 2022) to the appellant’s claim and thus the wrong standard of proof. It is said that at one point the judge found that on the issue of whether or not the appellant was a reservist, which as below, which it is argued was not an issue in dispute between the parties, there was only the appellant’s ‘word’ on that, which was considered not sufficient by the judge. This approach, where a higher standard of proof was applied than the lower standard, (which is the applicable standard of proof), affected findings of fact which in turn was relevant to the risk assessment.
Ground 2
“Erroneous finding that a key material fact was an issue at appeal.”
4. That the judge treated the fact of whether or not the appellant was a reservist for the Russian military as being in issue between the parties, when it had not been raised in the refusal letter, or in the review (where what appears to have been issue is whether the appellant is an ‘actively enlisted’ reservist as mentioned in the article). The judge recorded in the decision that counsel agreed at the start of the hearing that this was the first issue for the judge to determine. However, counsel’s note of the discussion of issues was that both representatives agreed at the start of the hearing that the fact of the appellant being a reservist was accepted by the respondent. What was in issue, was whether he would be called up into active service and what flowed from there. As the appellant and his representative were not aware that the judge would re-open a settled issue, post hearing, the appellant was not given the opportunity to address this, which caused unfairness. The judge’s findings on this issue then infected all other aspects of the decision, which caused material unfairness.
Ground 3
“Failure to take into consideration relevant evidence and consideration of irrelevant evidence”
5. That the judge found that the appellant is not in one of the categories of people who would be considered as reservists. However, it is asserted there was a failure to take into consideration section 3.3.2 of the Country Policy and Information Note Russian Federation: Military Service, V1.0, July 2023 (CPIN), which states that reservists include “previous conscripts.” The appellant’s case is that he was a previous conscript having undergone military service in Uzbekistan and having surrendered his military papers to the Russian Federation when he obtained citizenship. This finding then affected the assessment of risk on return.
6. That the judge also relied on s.8 Asylum and Immigration (Treatment of Claimants Act) 2004 as being capable of undermining the appellant’s credibility. The respondent conceded in the refusal letter that s.8 considerations were not raised in this case. The appellant had given an account of the circumstances surrounding his arrival in the UK and his claim for asylum in his witness statement. The judge did not have regard to this explanation and so found s.8 considerations undermined the appellant’s credibility.
Ground 4
“Requirement of the appellant to lie.”
7. That it is trite law that an appellant should not be required to lie on return if questioned about his absence. The Judge’s findings, [at paragraph 41], that the appellant should lie about his reasons for his absence, including his asylum claim made on the basis of a conscientious objection to the war in Ukraine and on the basis of his involvement in a protest against Putin, were said to be perverse.
8. Ground 5, on which permission was not granted on the basis it was without merit, was pleaded on the basis that the judge had treated s.8 considerations as the starting point for the credibility assessment, but also the determinative factor in the credibility assessment.
THE HEARING
9. At the start of the hearing, it was identified that a recording of the hearing had been sent to the panel, in relation to Ground 2 and what was discussed at the FtT hearing. This had unfortunately not been sent to either representative. Mr Hulme said he was therefore not in a position to indicate what was agreed at the start of the hearing, but he acknowledged the issue of whether or not the appellant was a reservist was not raised in the refusal letter. As to the review, he had noted the question of whether the appellant was enlisted as a reservist was addressed. We asked whether this referred to whether the appellant was ‘currently enlisted’ as a reservist in active service or enlisted as a reservist in an active role with ongoing training and pay, as this was what the article had related to. Mr Hulme said he could not really say more, as he had not heard the recording.
10. Mr Hulme said he had already had a helpful discussion with Ms Nnamani, and it was not in dispute between the parties that the wrong standard of proof had been applied, as pleaded in Ground 1, as this was a case where the claim was pre-NABA 2022. It was also agreed that this was a material error of law, since it went to the findings of fact and the assessment of risk.
11. In terms of whether a break needed to be taken or an adjournment for the parties to listen to the recording, which related to Ground 2, both Ms Nnamani and Mr Hulme agreed that where the error of law was so fundamental to all findings in the decision, there was no requirement for us to hear submissions on the other grounds, as no findings could be preserved in the decision.
12. As to disposal, both representatives agreed that the appropriate way forward would be remittal to the First-tier Tribunal for a de novo hearing.
13. We indicated that we were persuaded that there was a material error of law in the decision, such that it should be set aside with no findings preserved, and remitted to the First-tier Tribunal for a fresh hearing, and that a full decision with reasons would follow.
DISCUSSION AND CONCLUSIONS
Ground 1
14. S.32 of NABA 2022 provides a ‘two stage test’, as correctly identified by the judge, in relation to certain aspects of the assessment that must be made on an appeal against a refusal of asylum:
“s.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.”
15. The judge directed herself, [at 12 and at 23] to apply the provisions of s.32 NABA 2022 to the appellant’s case, which would require a determination of matters or issues covered by s.32(2)(a) and (b) to the civil standard or balance of probabilities. This is a higher standard of proof than that which has historically been applied in asylum appeals, which is the lower standard, which could be expressed as a “reasonable degree of likelihood” or a “serious possibility”.
16. As identified by the appellant’s grounds, there is nothing to suggest that a self populating decision template was used by the judge, but that the decision otherwise referenced the correct standard elsewhere, such as the judge having elsewhere referring to the ‘lower standard’, or whether there is a ‘serious possibility’ or ‘reasonable degree of likelihood’. That is particularly evident in the judge’s assessment of the appellant’s possible status as a reservist for the Russian military, where it was found that his account, or his ‘word’ was not sufficient to discharge the burden. It is trite law that there is no requirement for an appellant to produce corroborative evidence to establish facts to the lower standard and an otherwise credible claim is potentially capable of being established on oral evidence alone.
17. It is not contentious that the appellant claimed asylum on 23 March 2022. Nor that s.32(2) and the relevant civil standard of proof must only be applied to “a determination relating to a claim for asylum where the claim was made on or after the day on which this section comes into force” (s.30(5)). That section came into force on 28 June 2022 (s.87(5)(c)).
18. We find, therefore, that there is an error of law in the decision, in that a higher standard of proof was applied to the appellant’s appeal than is required by law. This is a material error, as it infects the core findings of fact, credibility and the assessment of risk on return, which flows from those findings.
Other Grounds
19. We agree with the position of the representatives, in that it was not necessary to hear submissions on the other grounds, where no aspect of the decision is sustainable as a consequence of the error identified in Ground 1. However, for completeness we did find merit in all four grounds on which permission to appeal was granted. Further, the panel had the benefit of the recording from the First-tier Tribunal hearing, which does identify, as pleaded in the grounds, that the parties were in agreement when discussing the issues at the start of the FtT hearing, that the fact of the appellant being a reservist was accepted by the respondent. The presenting officer also made no submission to the contrary at the conclusion of the hearing.
Remaking
20. We have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement and further considered in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). As noted above at paragraph 13, we are satisfied that it is appropriate to remit the appeal as no findings can be preserved in relation to findings of fact and the risk assessment. The loss of the two tier appellate process may also create unfairness. Both parties were also in agreement as to the venue for re-making.
Notice of Decision
21. The First-tier Tribunal decision involved the making of errors of law. Accordingly, the decision of the First-tier Tribunal dated 10 February 2025 is set aside, with no findings of fact preserved.
22. The appeal should now be remitted for a de novo hearing before a judge of the First-tier Tribunal other than the judge who made the decision on 10 February 2025.

H Graves

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 July 2025