Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001534

First-tier Tribunal No: PA/63690/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE HIRST
DEPUTY UPPER TRIBUNAL BEACH

Between

HM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Abdullah, UK International Ltd Solicitors
For the Respondent: Mr Parvar, Senior Home Office Presenting Officer

Heard at Field House on 5 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 him either directly or indirectly. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant appeals from the decision of the First-tier Tribunal dated 14 February 2025 dismissing his appeal on protection grounds.
2. For the reasons set out below we have concluded that the decision of the First-tier Tribunal involved the making of a material error of law and we set the decision aside.
Background
3. The Appellant is a national of Kuwait. He left Kuwait in July 2017 and travelled to the UK, where he claimed asylum; he subsequently left the UK in December 2019 and travelled to France. He returned to the UK and claimed asylum again on 9 July 2021. The basis of his protection claim was that he is an undocumented Bidoon and that he had been detained following his participation in pro-Bidoon demonstrations in 2014.
4. The Appellant’s claim was refused by the Respondent on 24 November 2023. The Respondent did not accept that the Appellant was a Bidoon, nor that he was likely to be of adverse interest to the security services on return.
5. The First-tier Tribunal heard the Appellant’s appeal on 10 January 2025 and dismissed it in a decision dated 14 February 2025. Permission to appeal was granted by the First-tier Tribunal on 3 April 2025.
6. The appeal came before a panel of the Upper Tribunal (UTJ Hirst and DUTJ Beach) at an error of law hearing on 5 June 2025. Having heard submissions from the parties, the panel reserved its decision which is given with reasons below.

Appeal grounds and submissions
7. The Appellant relied on 6 grounds of appeal. He asserted that:
a. Ground 1: The First-tier Tribunal’s application of s8 Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (‘AITC 2004’) at §24 was flawed and disproportionate. The Tribunal had erred in treating the Appellant’s failure to claim asylum in France as the starting point for assessing his overall credibility, rather than treating it as one factor among many;
b. Ground 2: The First-tier Tribunal had wrongly identified an inconsistency in the Appellant’s account of his detention, when in fact his timeline had been consistent;
c. Ground 3: The First-tier Tribunal had failed (at §26 and 31) properly to engage with or consider the evidence of the Appellant’s witness, who corroborated his claim to have attended the 2014 demonstration and to be an undocumented Bidoon;
d. Ground 4: The First-tier Tribunal erred in finding an inconsistency in the Appellant’s explanation for why his family was not registered in the 1965 Kuwait census, when there was no inconsistency;
e. Ground 5: The First-tier Tribunal erred by expecting the Appellant to provide corroborative evidence from his family in Kuwait, despite the difficulty of doing so given their status as undocumented Bidoons;
f. Ground 6: The First-tier Tribunal had wrongly, and without inviting submissions, introduced a scenario which did not form part of either party’s case, namely that the Appellant might be a documented Bidoon.
8. For the Appellant, Mr Abdullah’s submissions at the error of law hearing closely followed the grounds of appeal. In summary, he submitted that rather than considering the evidence in the round, the First-tier Tribunal had wrongly reached a conclusion on credibility on the basis of s8 AITC 2004 and had then reviewed the Appellant’s evidence in light of that conclusion; that was an error in light of Mibanga v SSHD [2005] EWCA Civ 367. There were clear errors in the way in which the First-tier Tribunal had considered the evidence, and the reasons given for dismissing key corroborating evidence were not adequate, or focused on irrelevant factors. In particular, the judge had rejected the evidence of the Appellant’s witness on the basis of irrelevant details. The judge had also erred in finding that the Appellant had given inconsistent evidence about his parents’ whereabouts during the census and the period of his detention by the police, when in fact there was no inconsistency.
9. For the Respondent, Mr Parvar adopted the Rule 24 response. He submitted in summary that the First-tier Tribunal had given detailed consideration to the Appellant’s case; the judge was entitled to take into account the fact that the Appellant had entered the UK in 2017 and 2019 and his failure to claim asylum in France. The judge had been entitled to reject the witness evidence and to find that the Appellant’s evidence was inconsistent in a number of respects. He submitted that the Appellant’s appeal was hypercritical of the judge’s reasoning.

Discussion and decision
10. Having given careful consideration to the First-tier Tribunal’s decision and the written and oral submissions of the parties, we have concluded that Ground 3 is made out and there were material errors in the First-tier Tribunal’s consideration of the Appellant’s witness evidence.
11. The issue of the Appellant’s status as an undocumented Bidoon was obviously central to the appeal. In addition to the Appellant’s account, the First-tier Tribunal had evidence from two witnesses, both of whom had refugee status in the UK as undocumented Bidoons. One of the witnesses attended the hearing and gave oral evidence. His witness statement stated that he knew the Appellant as a friend from Kuwait and also knew his brothers; they had attended the same mosque in Kuwait. He had been informed that the Appellant was in the UK and they had remained in regular telephone contact. He had witnessed the Appellant taking part in the 2014 demonstration in support of Bidoon rights. His oral evidence as recorded by the First-tier Tribunal was consistent with his written evidence.
12. The First-tier Tribunal addressed the witness evidence at paragraph 26 of the decision. The judge rejected the evidence of the witness who had not attended because he had not been cross-examined. The evidence of the second witness, who had been cross-examined, was however given little weight by the judge: firstly, because he was unable to give details of the Appellant’s work in Kuwait (§26) and secondly, because the Appellant had not suggested to the Respondent during the course of his asylum claim that he had someone who could corroborate his attendance at the demonstration (§28,31).
13. We accept Mr Abdullah’s submission that the reasons given by the judge for rejecting the witness’ oral and written evidence focused on irrelevant factors which did not go to the core of the evidence given, as deprecated by the Upper Tribunal in Chiver [1994] UKIAT 10758. Whether or not the Appellant knew any details of the Appellant’s work in Kuwait was not more than peripherally relevant to his evidence on the key issues at the heart of the appeal, namely the Appellant’s status as a Bidoon and his attendance at the 2014 demonstration.
14. Further, it was unreasonable to reject the evidence on the basis that the Appellant had not informed the Respondent “during the course of his asylum claim” that he had a witness who could corroborate his attendance at the 2014 demonstration. The Appellant was not asked during his asylum interview whether anyone could corroborate his attendance, and the evidence before the First-tier Tribunal was that he had regained contact with the witness only after his arrival in the UK. The Respondent had had the opportunity to review the witness evidence in her review.
15. We therefore consider that Ground 3 is made out. Because of the centrality of the witness evidence to key issues in the claim, we consider that the error infected and was material to the First-tier Tribunal’s overall conclusion on the appeal.
16. We also accept that an error is made out in relation to Ground 4. At §27 the First-tier Tribunal considered the Appellant’s evidence as to whether his parents had had the opportunity to be documented. In his asylum interview, the Appellant was asked “are you aware if any of your parents had a chance to be documented, when you was [sic] younger?” to which he replied “no”. In his witness statement for the First-tier Tribunal hearing, the Appellant explained that “my family was not aware of the census being conducted because at that time, they were living in the desert”. The First-tier Tribunal found (§27) that “I am not satisfied the Appellant has adequately accounted for his failure to mention in his asylum interview that his parents had been in the desert during the 1965 Census and I find this undermines the credibility of his account”. However, the Appellant had not been asked in his interview whether his parents had been documented in the 1965 census, nor where they were when the census took place, and there was no inconsistency between his interview response and his witness evidence. It was therefore unreasonable for the First-tier Tribunal to conclude that the credibility of the Appellant’s account was undermined.
17. Given my conclusions on Grounds 3 and 4, it is unnecessary for us to address the Appellant’s other grounds and we do not express any view as to their merits. The errors in the First-tier Tribunal’s assessment of the Appellant’s evidence were material to the outcome of the appeal and the decision will need to be remade.
18. The parties were agreed that if an error of law were found the matter should be remitted to the First-tier Tribunal for rehearing de novo. Having considered the Practice Statement, we consider that remittal is the most appropriate course.

Notice of Decision

The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.

The appeal is remitted to the First-tier Tribunal for de novo hearing before a different judge with no findings preserved.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 July 2025