Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001536

First-tier Tribunal No: PA/52175/2024
LP/05812/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

E.M.
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT (SSHD)
Respondent

Representation:
For the Appellant: Mr Hawkin of counsel, instructed by Kreston Law Ltd.
For the Respondent: Mr Hulme, Senior Home Office Presenting Officer.

Heard at Field House on 6 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 with permission against the decision (decision 2) of a First-tier Tribunal (FtT) judge (the judge), dated 15 February 2025, dismissing the appellant’s appeal against the decision of the respondent to refuse the appellant’s protection claim.
Background
2. The appellant is from Turkey. He first came to the UK in 2014 and then was removed. He returned to the UK in 2017 and claimed asylum. His appeal was dismissed on 18 January 2022 by a First-tier Tribunal judge (decision 1). The appellant was not found to be a credible witness and it was concluded that the asylum claim was contrived. The appellant made further submissions and this was rejected by the respondent in a decision dated 12 January 2024. The appellant appealed against the refusal. The appeal against that refusal was dismissed by the FtT (decision 2).
The appellant’s claim
3. The appellant claimed protection on the basis of his sexuality and his sur place activities in the UK. The appellant claimed he was discharged from his military service due to being gay and he was given a “pink report” stating he had an “adjustment disorder”. He also claimed his sur place activities in the UK, connected to HDP had come to the attention of the Turkish authorities and a warrant had been issued for his arrest.
The respondent’s decision.
4. The respondent’s decision (RFRL) dated 12 Jan 2024 is lengthy and consists of 190 paragraphs. It is unnecessary to repeat that decision in order to consider the appellant’s appeal, save to say that the appellant’s mental health was considered by the respondent. Reference is made to the appellant’s claim that he had attempted to kill himself and had harmed himself. The respondent also noted that the appellant had not provided any evidence or information to show that the appellant had a medical condition for which the appellant was currently receiving treatment in the UK.
FtT decision
5. The judge dismissed the appellant’s appeal. The appellant was the only witness who gave evidence to the judge. The appeal was subject to the provisions of the Nationality and Borders Act 2022 sections 20-39. It is not argued that the judge did not apply these provisions correctly.
6. The judge states that all the evidence was considered before reaching any conclusions [16]. The judge had regard to the previous decision of the FtT [21] but noted that the appellant had not raised his sexuality before [22]. The judge did not find the appellant to be a credible witness [23]. The judge did not find the account coherent. The judge rejected the military certificate and concluded that the appellant had not provided an adequate explanation of why the certificate stated “adjustment disorder”. The judge also noted that the appellant had not addressed that the FtT (in decision 1) had recorded that he had completed his military service [25]. The judge took into account the receipts and photographs provided {26] and [27]. At [28] and [40] the judge considered the appellant’s contact with the police and the claim of blackmail. I note that there is no reference in the decision to the appellant being found by police attempting to end his life (as claimed in the grounds of appeal).
7. I should note at this juncture that the appellant’s health was referenced in the skeleton argument in a paragraph between 27 and 28, which is not numbered. It was stated that the appellant was taking medication and his medical records had been provided. There is no reference to the Presidential Guidance regarding vulnerable witnesses. There is no request in the ASA to treat the appellant as a vulnerable witness.
Grounds of appeal
8. Ground 1 asserts that the judge failed to have regard to a country guidance case SD (Military Service- sexual identity) Turkey CG [2013] UKUT 612 (SD). Ground 2 asserts that the judge failed to properly apply the country guidance in IA and others (risk-guidelines-separatist) CG [2003] UKIAT 00034 (IA). Ground 3 states that the judge fell into error by failing to consider whether the appellant’s activities were genuinely held and whether on return the appellant would continue with his activities. Ground 4 argues that the judge failed to treat the appellant as a vulnerable witness.
Permission to appeal
9. Permission to appeal was granted by another judge of the FtT. In granting permission it is stated that :
“given the circumstances in which the appellant came to the attention of the police, it was arguable that the question of vulnerability should have been addressed and may have amounted to a Robinson obvious point”.
10. Permission was granted upon all grounds.
Submissions.
11. Mr Hawkin submitted that it was a fundamental error of law to fail to apply and have regard to a country guidance case. The document the appellant had produced was a crucial document regarding the appellant’s suitability for military service. The judge had not looked at the nature of the document. Mr Hawkin referred to paragraphs 51 and 81 of the decision in SD. Mr Hawkin acknowledged that there was no reference to SD in the ASA and he could not say it was directly referred to in submissions. However this was a country guidance case regarding military service in Turkey. The judge may have approached the case differently if regard was given to the decision. The CPIN should have been taken into account and was referred to in the RFRL. This demonstrated that sexuality was regarded as a mental health issue and disorder. The wording of the appellant’s document was consistent with this. The judge had effectively looked at the document in a vacuum.
12. Mr Hawkin stated that grounds 2 and 3 overlapped. The judge had not considered all of the factors which created a risk for the appellant. The factors set out in IA were not exhaustive. The judge had not taken into account potential suspicion, the level of known involvement, that the appellant is Kurdish and that he does not have an up to date passport. The judge had not considered whether the appellant’s beliefs were genuine and considered how he would act if returned to Turkey.
13. In respect of ground 4, Mr Hawkin stated that the appellant was clearly vulnerable. He had a medical condition. The appellant was on a waiting list for treatment. The appellant’s credibility was important. There was a practice direction regarding vulnerable witnesses as it is recognised that there are difficulties for such witnesses. The failure to consider the appellant’s vulnerability potentially affected all the findings made.
14. Mr Hulme addressed ground 4 first. He stated that the grounds did not reflect the material which was before the judge. The circumstances of how the appellant was found was not recorded. There was no medical report. The appellant’s claims were vague. It was not clear that any submissions had been made, that the appellant be treated as a vulnerable witness. The appellant did not refer to any medical needs nor to any medical evidence in his witness statement. The appellant’s vulnerability was not referred to in the ASA. Mr Hulme addressed AM Afghanistan v Secretary of State for the Home Department [2017] EWCA Civ 1123 (AM Afghanistan). The appellant was able to give evidence without inhibition. This pointed to a fair hearing and a reasoned decision. There was very little information before the judge about the blackmail. Mr Hulme stated that the findings were open to the judge.
15. In respect of ground 2, Mr Hulme stated that the factors in IA were not a checklist. Many aspects had been considered one way or another or they were not relied upon. The judge was aware of the claimed Kurdish activities abroad and these had been considered. The judge had made a holistic assessment of all the factors. The judge had rejected the court documents as not reliable.
16. In respect of ground 3, Mr Hulme stated it was important to look at the appellant’s activities. All but one event were concerned with Newroz, which is celebrated (carried out) in Turkey. This left one demonstration. The judge had found the appellant was low level and this did not take the appellant’s claims any further. He stated that there were no material errors of law.
Discussion and analysis.
17. I start with ground 4 first. There is no mention in decision 2 that the appellant is vulnerable and was treated as a vulnerable witness.
18. There is mention in the decision of the appellant’s prescription for anti-depressants and that he was referred to a LGBT group at Mind. However this was in the context of considering the appellant’s private life. The judge goes on to state “Having found the appellant’s claim’s for protection not credible, I do not find there are insurmountable obstacles to his integration...”
19. The prescription was current at the time of the hearing and dated in November 2024. This pointed to the appellant’s vulnerability. It is not apparent that the appellant’s mental health was considered when looking at his evidence and the statements he gave.
20. The appeal was heard on 14 November 2024. There was a supplementary bundle of evidence provided which the judge received [28]. I have considered the claim that there was information that the appellant had been found attempting to end his life and this demonstrated his vulnerability. The documents in the supplementary bundle refers to an incident which had occurred in May 2024. None of the documents refer to the appellant being found attempting suicide. In the email from a police officer at Rickmansworth Police station, the date on the document is not in English. There is an email from the appellant to the same police officer dated 1 July 2024 but it is barely visible. None of the documents state that the appellant has been blackmailed due to his sexuality and they do not refer to any self-harm or an attempted suicide as stated in the grounds of appeal. There is nothing to show that that information was before the judge. There is no information before the Upper Tribunal that the appellant was found in such a situation and when that was.
21. I have looked at the other evidence which was provided about the appellant’s potential vulnerability. The RFRL drew attention to the appellant’s claims of suicidal ideation and self-harm, although it was stated by the respondent that this was not supported by medical evidence. There is no statement from the advocate who appeared at the hearing to state that the appellant’s vulnerability was raised. The ASA only referred to the appellant’s health in the context of an article 8 claim and that it was accepted that the health condition did not meet the threshold for an article 3 claim.
22. On the my HMCTS platform there is a form for completion which sets out if there any hearing requirements. I was not provided with that form and nothing was said about it in submissions. I thus do not know if the appellant’s claimed health issues were drawn to the Tribunal’s attention in that document.
23. This ground of appeal focuses upon whether the proceedings were fair before the Tribunal (FtT) and whether proper consideration has been given to the appellant’s health condition in assessing his claims. There was no medical report before the judge. There was no report which identified that the appellant had difficulties in giving oral evidence or setting out his evidence. However, the medical prescription, which was before the judge, pointed to an appellant with a mental health condition.
24. It was stated in AM Afghanistan :
“30. To assist parties and tribunals a Practice Direction 'First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses', was issued by the Senior President, Sir Robert Carnwath, with the agreement of the Lord Chancellor on 30 October 2008. In addition, joint Presidential Guidance Note No 2 of 2010 was issued by the then President of UTIAC, Blake J and the acting President of the FtT (IAC), Judge Arfon-Jones. The directions and guidance contained in them are to be followed and for the convenience of practitioners, they are annexed to this judgment. Failure to follow them will most likely be a material error of law. They are to be found in the Annex to this judgment.
31. The PD and the Guidance Note [Guidance] provide detailed guidance on the approach to be adopted by the tribunal to an incapacitated or vulnerable person. I agree with the Lord Chancellor's submission that there are five key features:
a. the early identification of issues of vulnerability is encouraged, if at all possible, before any substantive hearing through the use of a CMRH or pre-hearing review (Guidance [4] and [5]);
b. a person who is incapacitated or vulnerable will only need to attend as a witness to give oral evidence where the tribunal determines that "the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so" (PD [2] and Guidance [8] and [9]);
c. where an incapacitated or vulnerable person does give oral evidence, detailed provision is to be made to ensure their welfare is protected before and during the hearing (PD [6] and [7] and Guidance [10]);
d. it is necessary to give special consideration to all of the personal circumstances of an incapacitated or vulnerable person in assessing their evidence (Guidance [10.2] to [15]); and
e. relevant additional sources of guidance are identified in the Guidance including from international bodies (Guidance Annex A [22] to [27]).
32. In addition, the Guidance at [4] and [5] makes it clear that one of the purposes of the early identification of issues of vulnerability is to minimise exposure to harm of vulnerable individuals. The Guidance at [5.1] warns representatives that they may fail to recognise vulnerability and they might consider it appropriate to suggest that an appropriate adult attends with the vulnerable witness to give him or her assistance. That said, the primary responsibility for identifying vulnerabilities must rest with the appellant's representatives who are better placed than the Secretary of State's representatives to have access to private medical and personal information. Appellant's representatives should draw the tribunal's attention to the PD and Guidance and should make submissions about the appropriate directions and measures to be considered e.g. whether an appellant should give oral evidence or the special measures that are required to protect his welfare or make effective his access to justice. The SRA practice note of 2 July 2015 entitled 'Meeting the needs of vulnerable clients' sets out how solicitors should identify and communicate with vulnerable clients. It also sets out the professional duty on a solicitor to satisfy him/herself that the client either does or does not have capacity. I shall come back to the guidance to be followed in the most difficult cases where a guardian, intermediary or facilitator may be required.
25. The primary responsibility to identify the appellant’s vulnerability is with the appellant’s representatives. It does not appear that it was put forward that the appellant was vulnerable and his evidence should be assessed accordingly. The judge was not assisted in this regard. However, all judges are required to have regard to the Presidential Guidance regarding vulnerable witnesses, whether it is raised by the representatives or not. In considering evidence from a vulnerable individual, background material and country reports potentially take on a greater significance. The failure to place the appellant’s evidence in the context of country guidance cases then takes on a greater significance.
26. I now turn to ground 1. Reliance is placed upon the country guidance case in SD. A failure to have regard to a country guidance case can amount to a material error of law. Judges are expected to be familiar with such cases and apply country guidance cases even if they are not specifically drawn to the judge’s attention by the advocates.
27. In SD the Upper Tribunal considered the risk for a gay person entering the military in Turkey and the processes for an exemption certificate. The Upper Tribunal heard form a number if witnesses including two experts.
28. This case, SD, was not referred to in the ASA which was before the judge. The argument now put forward and the particular paragraphs relied upon by the appellant were also not referenced in the ASA. The grounds of appeal focus upon paragraphs 34, 35, 44 and 55 of SD. The grounds extrapolate from these paragraphs that “adjustment disorder” may include “sexual identity disorder”.
29. In these particular paragraphs the Upper Tribunal was setting out the evidence which had been received. The Upper Tribunal’s assessment of that evidence begins at paragraph 86. Both experts were found to be reliable witnesses. The Upper Tribunal drew conclusions from the evidence. At paragraph 92, the Upper Tribunal stated that the military authorities had taken the initiative in some cases but it was normally the recruit who sought the exemption.
30. There is no reference in the decision of the FtT to SD. The judge stated that “adjustment disorder” might cover several issues but that the judge could not assume it covered homosexuality. When consideration is given to the Upper Tribunal decision in SD, the country guidance case potentially gave support for the appellant’s claim that he had been discharged from military service and given a “pink certificate” due to his “adjustment disorder”. The grounds also refer to the CPIN report which provides further support for the appellant’s claims. The judge did not reference or provide any analysis of the CPIN report either.
31. The judge also noted that the Tribunal had previously recorded in decision 1 that the appellant had completed his military service, which the appellant had not addressed. However, this finding is potentially not inconsistent with the appellant starting his military service and then being discharged due to the “adjustment disorder”. He had completed his military service call up and was discharged. The certificate was potentially supportive of the appellant’s claims in respect of his sexual identity. I am satisfied in the context of the appellant’s vulnerability that the failure to refer to, and have regard to, SD is a material error of law.
32. I turn to ground 2. The judge did not refer to the decision in IA either. However this is not referenced in the decision of the respondent but it is referenced in the ASA. It is also referenced in decision 1 of the Tribunal. There is no requirement for the judge to make a reference to the decision in IA, as long as it can be discerned from the decision that the case has been taken into account. A lack of a reference does not mean that the judge has not had regard to it. In IA, the Upper Tribunal set out a non exhaustive list of factors which could create a risk of persecution on return to Turkey. The judge had rejected the documents which the appellant had submitted. The judge noted that the appellant had been found not to be a credible witness in the previous appeal [21]. The judge concluded that the arrest warrant and court documents were not reliable documents and that his sur place activities were not of interest to the Turkish authorities [46].
33. Mr Hawkin was asked to identify the factors which were relied upon by the appellant that the judge did not address. Mr Hawkin referred to the potential suspicion, the level of the appellant’s involvement, that the appellant is Kurdish and that he did not have a current passport. When the decision is read as a whole, it is clear the judge was aware of the appellant’s Kurdish ethnicity [9], [44] and [46]. The judge assessed the appellant’s activities and whether that would create an interest in the appellant on return. Although brief, I am not satisfied that the appellant has demonstrated a material error of law. However, in the light of my decision on the other grounds, this risk assessment will need to be remade.
34. I turn to the final ground.
35. At [46] the judge appears to accept the appellant’s activities in the UK but concludes that they are low level. At [46] and repeated [52] the judge stated that she was not satisfied that a warrant had been issued or that his sur place activities had created a real risk of harm in Turkey. This lends weight to the appellant’s argument that the judge had not stood back and asked whether the appellant’s political activities are genuine and whether the appellant would be at risk if he continued with them in Turkey. This is an important assessment of future risk. The appellant is accepted as of Kurdish ethnicity. The judge did not consider what would happen to the appellant if he attended such a demonstration in Turkey.
36. I have considered this claim carefully. In order to assess this risk, a consideration of the country guidance cases and the background material regarding HDP, are very important. There is no analysis by the judge of the background material which was submitted and the material referenced in the ASA. The judge had noted that the appellant had attended just one rally and many Newroz gatherings. The judge concluded that the appellant’s activities were low level. However, this does not address the risk in the future if the appellant carried on with his activities.
37. The appellant did not refer to the desire in carrying out any political activities in Turkey on return in his statement dated 23 February 23. In his witness statement for the appeal hearing, the appellant did refer to his political activities and his support for HDP. HDP is a proscribed organisation in Turkey and it is claimed it is linked to the PKK.
38. I have read and re-read the decision carefully. I am persuaded that there is a material error of law in this regard. The assessment of risk on the basis of whether the activities in the UK had come to the attention of the authorities already is not a complete assessment of the potential of risk to the appellant.
39. I am satisfied that the grounds of appeal establish material errors of law as set out above. I conclude that a consideration of the appellant’s vulnerability was important in assessing his credibility overall and the documents he produced.
40. Accordingly, I find the judge materially erred in law in her assessment of credibility and I set aside the judge’s decision. None of the judge’s findings are preserved. I have decided in accordance with paragraph 7.2 of the Practice Statement of 25 September 2012 to remit the appellant’s appeal to the First-tier Tribunal.
41. The Tribunal is directed pursuant to section 12(3) of the Tribunals, Courts and Enforcement Act 2007 to reconsider the appeal at a hearing before a First-tier Tribunal Judge other than First-tier Tribunal Judge Behan and Judge Mill.

Notice of Decision
Appeal allowed
The decision of the First-tier Tribunal is set aside. None of the judge’s findings shall stand.
The matter is remitted to the First-tier Tribunal for rehearing.

Iain Burnett

Judge of the Upper Tribunal Immigration and Asylum Chamber

10 July 2025