Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001737
First-tier Tribunal No: PA/57174/2024
LP/ 05539/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3rd of June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

Between

AE
(A.K.A. KK)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. R. Hussain, Solicitor, Legal Justice Solicitors
For the Respondent: Mr. E. Tufan, Senior Home Office Presenting Officer

Heard at Field House on 5 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, her partner and their child are granted anonymity.

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

DECISION AND REASONS

Introduction
1. This is a remaking hearing under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of First-tier Tribunal Judge Webber (“the judge”) promulgated on 14 January 2025, dismissing the appellant’s appeal against the respondent’s decision to refuse her asylum claim. This remaking follows the setting aside of the judge’s decision by myself for a material error of law, in a decision with reasons issued on 15 October 2025. The error of law decision is attached in the annex to this decision.
2. The central issues in dispute in this appeal are the appellant’s identity and nationality. The appellant asserts she is KK, a citizen of Afghanistan. The respondent says she AE and an Indian national.
3. Having heard all of the evidence, the First-tier Tribunal judge made extensive factual findings, which included resolving issues in relation to the appellant’s credibility but concluded that the appellant was a dual national of Afghanistan and India. In the error of law decision, I ruled the judge had made a material error of law by failing to decide between the appellant and respondent’s competing propositions about her nationality. Neither party had ever suggested she was a dual national, nor were the parties put on notice that the judge intended to resolve the case in this way. I therefore set the judge’s decision aside but I preserved the majority of the judge’s findings of fact. The question of the appellant’s nationality therefore falls to be determined in this re-making hearing, in light of (a) the judge’s factual findings, and (b) an additional expert report from an Indian lawyer, which was not before the First-tier Tribunal.
Anonymity Direction
4. I have maintained the Anonymity Order in favour of the appellant. I 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.
Background
5. The appellant asserts she is KK and claims to be an Afghan national. She says she is Sikh and born in 1999 in Khost, Afghanistan. She says she lived in Afghanistan with her family until she was about 10 years old, when fearing for their safety they relocated to Moscow where they remained for approximately 13 years. She claims her family recruited an agent to assist them to travel to the United Kingdom. She travelled to India with her family, where they stayed for about five months until, with an agents assistance including in relation to the procurement of travel documents, she was able to travel via an unknown country by plane and then onto the United Kingdom by lorry and car. The appellant was the first of her family to make the journey and she has not heard from them since. When she arrived in the United Kingdom in August 2022, she claimed asylum on the basis that she could not return to her country of origin, Afghanistan, without fear of persecution as a member of the Sikh minority group.
6. The Home Office conducted a screening interview (SCR) with the appellant on 9 August 2022. The screening interview refers to two sets of information in relation to the appellant’s identity. First, it records her name as AE (at question and response 1.1), her place of birth as India and her year of birth as 2001 (at question and response 1.2). Secondly, it records the appellants claim to be KK with a date of birth in 1999 and place of birth, Afghanistan (at question and response 1.3). It appears from the information in the screening interview that the appellant said she had both Indian and Afghan nationality (at question and response 1.5 and 1.6). The appellant said she had been in India for five months, flew to an unknown country by air from where she left hidden in a lorry arriving in the United Kingdom on 9 August (at question and response 3.4). The appellant explained she could not go back to Afghanistan because her life would be in danger from the Taliban (at question and response 4.1) and she could not return to India because she had only been there for five months and did not know anyone in India (at question and response 3.4 and 4.1).
7. On 3 September 2022, the appellant completed a preliminary information questionnaire (PIQ), in which she set out the basis for her asylum claim and provided the background information summarised in para. 4 above.
8. On 20 September 2022, the appellant had her substantive asylum interview (AIR). The record indicates it was suspended because the appellant and interpreter could not understand each other but it also records answers and responses to questions which were nevertheless asked. The appellant repeated the basis for her asylum claim and provided the background information summarised in para. 4 above. The interviewer noted she had said she was from Afghanistan and asked why in her screening interview she had also said she was Indian. The appellant explained she had “been under pressure” and had been told “that if I accept that I was Indian it would help” (question and response 2).
9. The appellant provided the respondent with a copy of her Afghan identity document (Tazkira) and a translated version of her Tazkira, dated 20 September 2022. The translation shows the Tazkira as issued in 2013, her name as KK, her place of birth as Khost, Afghanistan with her age assessed as 14 years.
10. The appellant also provided the respondent with a witness statement, dated 3 March 2023. The appellant set out the basis for her asylum claim and provided the background information summarised in para. 4 above. She explained she was taken by an agent to India for five months, during which time he made documents and she had her fingerprints and picture taken, before she was taken from India to an unknown country and then onto the United Kingdom. The appellant explained she is illiterate and uneducated and so did not know which country she had travelled to by air (para. 1, witness statement). The appellant also referred to having provided the respondent with a copy of her Tazkira and the translation (para. 7, witness statement). The appellant said her identity was that set out in her Tazkira but the agent had made documents in a different name and identity but that was not who she was (para. 8, witness statement).
11. On 28 February 2024, the respondent made the decision to reject the appellant’s asylum claim. In so deciding, the respondent had all of the above documentation, as well as a Republic of Ireland Visa application from April 2022, which included a photograph of the appellant, referred to as AE (forename only) and date and place of birth as 2001, India. It referred to the appellant’s length of residence in India as 21 years and indicated she would be travelling to Ireland with a spouse.
12. The 28 February 2024 letter states the respondent accepts the appellant is Sikh and that if the material facts of her claim were true then as a member of a Sikh minority she would indeed be in danger of persecution from the Taliban in Afghanistan. However, the respondent did not accept the appellant had established she was KK and a national of Afghanistan. Rather, on the basis of “external information confirming you were granted a Visa to enter the Republic of Ireland as an Indian national using an Indian passport” the respondent concluded she was an Indian national who could safely be returned to India. Beyond, referring to the Visa and stating the appellant’s claim to be an Afghan national had not been established, the respondent did not explain why the appellant’s account had been rejected. The respondent said nothing about any conclusions in relation to the appellant’s credibility, including which parts of her account were accepted and which rejected. The respondent did not refer to the Tazkira.
13. The appellant appealed against the respondent’s refusal and her case came before the First-tier Tribunal for a hearing on 13 December 2024.
The First-tier Tribunal Decision
14. The judge recorded that the appellant appealed under the provisions of the Nationality, Immigration and Asylum Act 2002 against the respondent’s decision dated 28 February 2024 to refuse her protection claim made on 9 August 2022, such that ss30-30 of the Nationality and Borders Act 2022 applied and that the appeal was on asylum, protection and human rights grounds [1].
15. The following evidence is referred to in the judge’s decision:
Witness evidence:
The appellant’s evidence:
16. The judge heard evidence from the appellant, who adopted her witness statement and was cross-examined and answered questions from the Tribunal [13]. The judge accepted her evidence “that she grew up in Afghanistan, lived in Moscow for 13 years and then moved to India” and noted that the Home Office representative had “not put to the appellant in cross-examination that she was not telling the truth about having lived in Moscow for that period” [30]. The judge recorded that the appellant was asked in cross-examination whether she went to Ireland before entering the United Kingdom and her answer had been the same as in her witness statement, namely she did not know; she had been taken by air to an unknown country [23]. The judge recorded that the appellant was asked in cross-examination why she did not apply for a replacement Indian passport and she replied, “I didn’t have the passport at all with me. It was taken from me by the agent long ago” [26].
The appellant’s partner’s evidence:
17. The judge had a witness statement from the appellant’s partner in the United Kingdom, who gave oral evidence at the hearing and stated that he met the appellant in Moscow in 2016, and again in 2021 when they got engaged. The judge recorded that “no real challenge” was made to his evidence [32]. Additionally, there was a copy of a birth certificate of the appellant and her partner’s child, born in the United Kingdom.
Witness statement from the appellant’s legal representative:
18. There was also a witness statement from the appellant’s legal representative, which explained that the representative had accompanied the appellant to VFS Hounslow to find out whether the passport information could be confirmed as genuine but VFS Hounslow indicated they were unable to provide such a service. The judge accepted a visit had been made to VFS Hounslow as descried but placed “little weight on it” reasoning it was of limited materiality [26].
Expert witness evidence:
19. The judge had expert evidence in the form of reports from two Afghan country experts, one a linguist and the other a forensic document examiner. The judge described the expert reports as “very thorough” and stated they “strongly supports her position that she spent the early years of her life in Afghanistan” [29]. The judge gave “significant weight” to the expert report of the linguist “insofar as it evidences that the appellant’s speech and languages are consistent with Afghan Sikhs, including Pashto, Dari and Kabuli Punjabi” [29]. The judge also accepted the expert evidence of the forensic document examiner in relation to the Tazkira.
Documentary evidence:
The Tazkira:
20. In relation to the appellant’s Tazkira, the judge recorded the appellant had said it had been obtained by her father and she did not know when the photograph was taken and had not used it in Afghanistan. The judge noted it was not referred to in the respondent’s refusal letter and the respondent’s review did not challenge the validity of the Tazkira. The judge noted the expert evidence was that “the Tazkira having been prepared by her father in her absence is the case of about 95% of females in Afghanistan” [27]. The judge concluded the Tazkira was an authentic document [28].
The Irish Visa application form:
21. For clarity, the judge did not have a copy of the Indian passport but only the Irish Visa application form which included the information contained within the Indian passport. The judge recorded that the Visa application was for a short-stay visit for tourism. The name AE was given, with no surname. The date of birth was a date in 1999. The country of birth was India. The current location was recorded as India, with an address given in India. The length of residence in India was stated as 21 years. The Visa application referred to an Indian passport issued in April 2022. The application also referred to the appellant as travelling with a spouse and a name was given for the said spouse. Details of a hotel in Ireland were provided and an indication made that no assistance had been provided in completion of the Visa application form [24].
Country evidence:
22. In addition to the above, the appellant produced the following country evidence:
i. Country Background Note India, January 2019,
ii. CPIN Afghanistan: Hindus and Sikhs March 2021,
iii. Immigration and Refugee Board of Canada, India: Availability and prevalence of fraudulent identity documents, including membership cards of political parties, 5 May 2014
iv. Immigration and Refugee Board of Canada, India: Violence against women, including homelessness, workplace violence and acid attacks; legislation, state protection, support services, and resources available (2017 – Augst 2020), 19 October 2020.
23. The judge also had the documentary evidence from the respondent referred to above in paras. 6 -8.
Factual findings:
24. The judge made the following factual findings in relation to the appellant’s account:
i. The appellant was born in Khost, Afghanistan [33];
ii. She grew up in Afghanistan, lived in Moscow for 13 years and then moved to India for a short time [30];
iii. Although the appellant had said she entered an unknown country by air before travelling to the United Kingdom, whilst not rejecting the appellant’s account that she did not know which country she had flown into the judge found the appellant had entered Ireland before continuing her journey to the United Kingdom [23].
25. The judge concluded the Tazkira was an authentic document and at the point the Tazkira was obtained, 7 May 2013, the appellant was accepted by the Afghan authorities as an Afghan national [28].
26. Regarding the Indian passport, the judge found it was “more likely than not” to be a “genuine” Indian passport issued to the appellant [33 (iii)]. It is important to put this finding into context. Although, the judge referred to the passport as “genuine” what he really meant was that this was an officially issued but fraudulently obtained passport, which had been issued to the appellant although not to her real identity. This is clear when read alongside the following findings made by the judge in relation to the passport at [33]:
i. The judge recorded that the appellant used the Indian passport to travel to Ireland before moving onto the United Kingdom [33(i)] but she did not know how the passport was obtained and had said her father obtained it via an agent [33(iii)].
ii. The judge placed weight on the appellant’s country evidence. This included evidence from the Refugee Board of Canada, which reported conversations with a representative from the Asian Human Rights Commission, giving examples of passports having been procured with fake documents. The judge concluded this showed that officially issued Indian “passports can be obtained using false documents”[33(ii)] and that “it is relatively easy to obtain a genuine passport “using false documents [33(iii)].
iii. The judge did not attach much weight to the fact the passport had been issued to the appellant in a different name and date of birth in view of i. and ii. [33(iii)].
27. Thus the judge’s conclusion, in view of all the evidence, amounted to the appellant having obtained and used an officially issued but fraudulently obtained passport in the identity of AE, which had been accepted by the Irish authorities on the basis that it had been officially issued although unaware it had been fraudulently obtained.
Finding on dual nationality:
28. The judge concluded the respondent had proved the appellant was an Indian national, relying upon his findings in relation to the passport and Hussein & Anor (Status of passports: foreign law) Tanzania [2020] UKUT 250, and the judge also placed “some weight” upon the appellant’s screening interview [33(iv)] and “weight” on the appellant having lived in India for five months, which he found was “consistent with her being an Indian national” [33(v)]. However, based on the factual findings in relation to the appellant’s account and her Tazkira, the judge concluded the appellant had also proved she was a national of Afghanistan, born in Khost, Afghanistan [33(b)]. The judge concluded the appellant was a dual national of Afghanistan and India and could therefore be returned to India on a replacement passport of the one used to travel to Ireland [35].
The Error of Law Hearing, Preserved Findings and Directions:
29. The appeal came before the Upper Tribunal for an error of law hearing. There was no Rule 24 Notice from the respondent. I have summarised the outcome above.
30. Most of the factual findings made by the judge were preserved, which were summarised in the error of law decision as follows:
i. A copy of a Tazkira provided by the appellant was an authentic document [28].
ii. At the point the Tazkira was obtained, 7 May 2013, the appellant was accepted by the Afghan authorities as an Afghan national [28] born in Khost.
iii. The appellant grew up in Afghanistan, lived in Moscow for 13 years and then moved to India for a short time [30].
iv. Significant weight could be given to the expert reports insofar as they evidenced that the appellant’s speech and language are consistent with Afghan Sikhs, including Pashto, Dari and Kabuli Punjabi [29].
v. The appellant had travelled to Ireland [22] using an Indian passport before coming to the United Kingdom. It was more likely than not to be a “genuine” passport [33].
31. Regarding v. as explained in paras. 26 – 27 above, the judge’s finding in relation to the passport being “genuine” referred to an officially issued but fraudulently obtained passport.
32. The following factual findings were expressly not preserved:
i. The judge’s findings on nationality [33 - 35].
ii. The judge’s finding that the appellant will be able to return to India on a replacement Indian passport [33].
33. The error of law decision indicated that the issue to be determined by the Tribunal in re-making was whether the appellant is an Afghan national, an Indian national, or a dual-national. A direction was made for a case management hearing, primarily in relation to the timetable for provision of a report from an expert in relation to the applicable foreign law relevant to whether the appellant was an Afghan national, Indian national, or a dual national.
Case management by the Upper Tribunal
34. A case management hearing took place before Upper Tribunal Judge Landes on 18 November 2025. Case Management Directions issued on 3 December 2025, record that in response to a direction made at the case management hearing, the respondent confirmed she did not hold a copy of the Indian passport and would not be able to produce a copy of the passport from the Indian authorities. The respondent indicated that confirmation the visa for Ireland had been granted as per the application could be provided. It has not in fact been provided.
35. Upper Tribunal Judge Landes made directions for the appellant to file and serve an expert report and for skeleton arguments and recorded that the intention was for the re-making hearing to be submissions only. These directions were subsequently extended, alongside a grant of an adjournment of the re-making hearing, originally listed for 24 February 2026.
Re-making Hearing
36. The appellant attended the remaking hearing with her partner. The re-making hearing was submissions only and no evidence was heard.
37. At the outset of the re-making hearing, I clarified with the parties that the preserved finding in relation to it being “more likely than not” the passport was “genuine” (v, in para. 30 above), referred to the passport having been officially issued but fraudulently obtained by the agent using false documentation. I took the parties to the judge’s findings in relation to this, which I have set out above in para. 26 i-iii. Notably, in his Skeleton Argument Mr Hussain had incorrectly characterised the preserved finding as being that the passport itself was a false document rather than the passport having been obtained using false documentation. This error was highlighted by Mr Tufan in his own Skeleton Argument. It was therefore necessary to clarify the preserved finding with the parties at the beginning of the hearing. The parties were invited to consider whether they wanted any time to consider the matter or to make any further representations in relation to the preserved finding but they did not.
Expert Report:
38. A country expert report was provided by Mr Shantanu Mohan Puri, an Advocate in the Indian Judicial System, dated 17 February 2026, along with Mr Puri’s CV and letter of instruction. There was no challenge either to Mr Puri’s expertise in Indian law, which I accept, nor to the admission of the report, which I admitted into evidence.
39. Mr Puri addressed the following issue: “How can an Afghan acquire an Indian Passport in India. Does she need to secure nationality and if so, what are the requirements according to law?”
40. Mr Puri explained that the “lawful acquisition of an Indian passport by an Afghan national is contingent upon strict compliance with the statutory framework laid down under the Citizenship Act, 1955, which serves as the primary legislation governing nationality and citizenship in India. Since a passport under Indian law can only be issued to a person who is an Indian citizen, acquisition is a mandatory prerequisite before an application for an Indian passport can even be entertained” (para. 18). An Afghan national could only obtain citizenship through registration or naturalisation as set out in the applicable Indian law under the Citizenship Act 1955 (para. 20). It is unnecessary to set out the detail of Mr Puri’s report. However, the significant points are:
i. The registration route pursuant to section 5 of the Citizenship Act requires the person to have resided in India for one year before making the application, and either to have a parent who was earlier a citizen of independent India, or to have been registered as an Overseas Citizen of India for five years (paras. 21 – 22).
ii. The naturalisation route pursuant to section 6 of the Citizenship Act likewise requires persons to have been resident in India, or in the service of the Government of India, for one year before making the application, as well as either resident in India, or in the service of the Government of India, for at least 5 years of the preceding 14 year period in the case of Afghan Sikhs (paras. 25 - 26).
41. Mr Puri confirmed Indian law does not recognise dual nationality, which is reflected in Article 9 of the Indian Constitution (para. 31) and Section 9 of the Indian Citizenship Act 1955 (paras. 31 – 33) and has been “consistently affirmed” in the Indian courts (paras. 33 - 37). Further, he explained that the judgment of the Supreme Court of India in Izhar Ahmad Khan v Union of India (1962) 1962 AIR 1052, 1962 SCR Supl. (3) 235 “makes clear that documentary evidence, while relevant, is not automatically conclusive. Documents such as passports may constitute prima facie evidence, but they do not by themselves finally determine citizenship” (para. 33). Mr Puri also cited the case of Motimiya Rahimmiya and Etc. v State of Maharashtra (2003) 09 BOM CK 0080, as an authority in which the claim made by a foreign national who had acquired an Indian passport to be an Indian citizen was rejected because they had failed to prove they were born in India, or their parents status. Thus “merely possessing Indian passports […] was deemed insufficient for establishing citizenship” (para. 42, and further at para. 43).
42. Aside from an Afghan citizen acquiring a passport via the lawful route, i.e. through the formal acquisition of Indian citizenship followed by making an application for a passport, the second route for an Afghan citizen to acquire a passport was to do so unlawfully (para 38). Mr Puri referred to foreign citizens, including Afghan nationals, obtaining Indian passports using false documents or through the assistance of corrupt agents (para. 38) and gave examples of several reports demonstrating this practice (paras. 39 – 41).
43. In conclusion, Mr Puri summarised his opinion at para. 66 of his report as follows:
“a) […] unless the appellant meets the conditions prescribed under either Section 5 or section 6 of the citizenship act 1955 she would not be eligible to acquire Indian citizenship.
b) determination of the appellants nationality requires assessment within the applicable legal framework rather than reliance on documentation alone. The appellant's Afghan nationality is supported by her Taskira which has been judicially accepted as authentic and constitutes primary evidence of Afghanistan citizenship. While the appellant previously possessed an Indian passport Indian law makes clear the passport is not conclusive proof of citizenship. Further Indian law does not recognise dual nationality. Accordingly the appellant cannot as a matter of law be regarded as a dual national of India and Afghanistan under Indian law.
44. For completeness, I note Mr Puri addressed two additional issues in his report. First he attended the address mentioned in the Visa application form. He established the address referred to did not exist and he spoke to people in the neighbourhood and showed them a photograph of the appellant but nobody recognised her (para. 66 (c)). Secondly, he was asked to try and verify the passport information mentioned in the Visa application but he was unable to do owing to data protection reasons (para 66(d)).
Findings and reasons
45. Having carefully considered the factual findings made by the judge, coupled with the evidence regarding Indian law set out in Mr Puri’s expert report, I am satisfied the appellant is KK a national of Afghanistan, rather than AE a national of India.
46. The judge accepted the appellant was born in Khost, Afghanistan, where she lived with her family until they moved to Moscow for some 13 years before moving to India for a short time, after which she came to the United Kingdom. The judge accepted the appellant’s Tazkira as an authentic document. The Tazkira is evidence that the appellant is KK, born in Khost, Afghanistan around 1999. It demonstrates she was regarded as an Afghan national at the time it was issued. I am satisfied the appellant remains an Afghan national, as evidenced by her Tazkira, supported by the explanation she has provided of her personal and family history, which is supported by the evidence of her partner and expert evidence accepted by the judge.
47. In relation to the appellant’s acquisition of an Indian passport, the judge found the appellant had only been in India for a “short time”, during which she obtained a passport via her father with the assistance of an agent. Taken alongside the country evidence, referring to the ability of agents to obtain Indian passports using false documentation, the judge’s findings reflect the passport having been issued to the appellant but not in her real identity. It was an officially issued but fraudulently obtained passport, which was not issued to KK born in Khost, Afghanistan in 1999 but rather to an alias identity (AE) created for the appellant by an agent. The personal information contained in the passport (as described in the Visa application) is inconsistent with the personal data contained in the Tazkira, as well as the appellant’s account about her personal and family history. Contrary to the information recorded in the Visa application the appellant is not married and had not lived in India for 21 years. Bringing this all together it is impossible to see how the appellant could have acquired Indian citizenship, which is a pre-requisite to lawfully obtaining a passport as explained by Mr. Puri. Furthermore, Mr Puri’s expert evidence indicates the appellant having obtained an Indian passport does not conclusively establish that she is a citizen of India. Consequently, I do not find she is a citizen of India but rather that she remains an Afghan national.
48. Mr Tufan, representing the Home Office, relied upon Hussein & Anor (Status of passports: foreign law) Tanzania [2020] UKUT 250 (Hussain & Anor) as authority for the proposition that “a person who holds a genuine passport, apparently issued to him, and not falsified or altered, has to be regarded as a national of the State that issued the passport” and submitted that, “[a]pplying the factual matrix of the present case […] the appellant held a genuine passport and must therefore be regarded as an Indian citizen”. Mr Tufan also emphasised the appellant’s use of the passport was indicative of her nationality having been accepted by the Indian and Irish authorities (respondent’s skeleton argument para. 3).
49. However, Hussein & Anor establishes that possession of a passport creates a prima facie presumption that the holder is the national of the country of issue which is therefore capable of being rebutted [93]. An extract from the UNHCR Handbook referred to at [93] explains as follows: “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”[93]. In the circumstances of this case, for the reasons set out in paras. 46-47 above, I am satisfied the appellant has rebutted the prima facie presumption referred to in Hussein & Anor.
50. Further, the factual matrix in this appeal is distinguishable from Hussein & Anor. In Hussein & Anor, the appellant was born in Somalia but had entered the United Kingdom on a Tanzanian passport. He made a claim for asylum on the basis that he was a national of Somalia, claiming he was not in fact entitled to his genuinely issued Tanzanian passport [5]. Then Vice President Ockleton noted the appellant had used his passport to travel on at least ten occasions upon his entry and exit through international airports, as well as seen twice by entry clearance officers [7]. The factual matrix in Huseein & Anor is rather different to the circumstances in this appeal. Unlike, this appellant, Mr Hussein held a passport issued to his genuine identity. Unlike this appellant, the passport was used by him on a significant number of occasions for international travel. Further, there is expert evidence in this case, whereas Mr Hussein did not rely upon any expert evidence to demonstrate his Tanzanian passport had been incorrectly bestowed upon him.
51. Another point of contention is both parties have suggested the other could have done more by way of contacting the Indian High Commission in relation to the passport. Mr Tufan submitted the appellant could have conclusively resolved the issue had she made an official application for renewal of the passport. Mr Hussain, submitted in response that were the appellant to have made such an application it would inevitably have been refused because she would not have the necessary documentation to support the application; she does not have a copy of the passport which was retained by the agent and does not have any other documentation in the alias identity. Likewise, Mr Hussain argued that the respondent could herself have contacted the Indian High Commission but had not done so. Notably, in response to directions made at the Case Management Hearing the respondent indicated she would not be able to produce a copy of the passport from the Indian authorities. At the re-making hearing, Mr Tufan submitted it was not within the respondent’s remit to make the enquiry of the Indian High Commission. In all the circumstances, I do not find that the possibility of the appellant making an application to the Indian High Commission, absent a copy of the passport and absent any additional supporting documentation is sufficient to undermine the significant evidence in the case which supports the finding she was and remains KK, an Afghan national.
52. It has never been in dispute in these proceedings that if the appellant was found to a national of Afghanistan, then as an Sikh, a minority group in Afghanistan, she would be at risk of persecution if returned. Thus, having found she is an Afghan national, I find she would be at risk of persecution and allow her appeal.
Notice of Decision
53. The appeal is allowed on asylum grounds.

Kathryn Howarth

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 May 2026
ANNEX

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001737
First-tier Tribunal No: PA/57174/2024
LP/ 05539/ 2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

Between

AE
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. S. Jegarajah, Counsel, instructed by Legal Justice Solicitors
For the Respondent: Ms. J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 10 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant appeals with permission against the decision of the First-tier Tribunal, dated 13 December 2024, to dismiss her appeal on protection and human rights grounds.
Background
2. The appellant claims to be an Afghan national. She is Sikh. She says she was born in 1999 in Khost, Afghanistan. She says she lived in Afghanistan with her family until she was about 10 years old, when fearing for their safety, the family relocated to Moscow where they remained for approximately 13 years. She claims her family recruited an agent to assist them to travel to the United Kingdom. She travelled to India with her family, where they stayed for about five months until, with the agents assistance, she was able to travel onwards to the United Kingdom. The appellant was the first of her family to make the journey and she has not heard from her family since she left India. The appellant claims the agent assisted her to fly to an unknown country and from there she travelled by lorry and car to the United Kingdom. When she arrived in the United Kingdom in September 2022, she claimed asylum on the basis that she could not return to her country of origin, Afghanistan, without fear of persecution as a member of the Sikh minority group.
3. The respondent rejected the appellant’s asylum claim on 28 February 2024. According to the respondent the appellant is an Indian national (not a national of Afghanistan) and so can safely return to India. The respondent thus concluded because the Home Office had a copy of a visitor visa application the appellant had made to the Irish authorities, premised on an Indian passport which had been held by the appellant. During her initial interview after claiming asylum, the appellant had referred to the name on her Indian passport and had said she was an Indian national. The respondent was not satisfied the appellant had proved she was an Afghan national, or that her identity was different from that recorded in the Indian passport, but did not provide any additional reasons beyond the above. For example, the respondent did not refer to a Tazkira (an Afghan national identity card) which the appellant had provided to the Home Office, or that in her initial interview she had also referred to the names recorded in her Tazkira and had said she was an Afghan national.
The First-tier Tribunal Decision
4. The appellant’s appeal against the respondent’s refusal was heard by a judge of the First-tier Tribunal on 13 December 2024. The sole issue before the judge was a dispute between the parties about the appellant’s nationality. The respondent accepted that, if the appellant was an Afghan rather than an Indian national, she would be entitled to refugee status because as a Sikh of Afghan nationality, she would have a well-founded fear of persecution and internal relocation would not be available to her in Afghanistan. However, the respondent invited the judge to find she was a national of India and not an Afghan national. Whereas, the appellant invited the judge to find she was a national of Afghanistan and not an Indian national. The appellant’s argument was that her genuine identity was the one recorded in her Tazkira and her nationality was Afghan, and the Indian passport which the appellant had used to travel by plane contained an alias name and date of birth. Significantly, neither party submitted she was a dual-national. However, the judge concluded the appellant was a dual-national of both Afghanistan and India, and could be returned to India where she would not be at risk of persecution [35].
5. In so concluding the judge made the following factual findings:
(1) A copy of a Tazkira provided by the appellant was an authentic document [28].
(2) At the point the Tazkira was obtained, 7 May 2013, the appellant was accepted by the Afghan authorities as an Afghan national [28].
(3) The appellant grew up in Afghanistan, lived in Moscow for 13 years and then moved to India for a short time [30].
(4) Significant weight could be given to the expert reports insofar as they evidenced that the appellant’s speech and language are consistent with Afghan Sikhs, including Pashto, Dari and Kabuli Punjabi [29].
(5) The appellant had proved she was a national of Afghanistan, born in Khust [33].
(6) The appellant had travelled to Ireland [22] using an Indian passport before coming to the United Kingdom. It was more likely than not to be a genuine passport (and she would be able to obtain a replacement Indian passport) [33].
(7) The respondent had proved the appellant was an Indian national [33].
(8) The appellant was therefore both a national of Afghanistan and a national of India [34] and could be returned to India, with a replacement passport of the one she used to travel to Ireland, where she would not fear persecution [35].
6. At para [34] the judge referred to the country background note on India, dated January 2019, noting it states that “Dual nationality is not permitted under Indian law” and cites the Indian constitution. The judge recorded there was no evidence in the case about the implications of the appellant holding dual nationality of Afghanistan and India and whether this could have any material effect on her protection claim. The judge observed that expert evidence on the issue “would have been most instructive” and noted foreign law needs to be proved by expert evidence, referring to CS and Others (Proof of Foreign Law) India UKUT 00199 (IAC) and Hussein and Another (Status of passports: foreign law) [2020] UKUT 00250 (IAC). The judge proceeded to decide the case on the available evidence, placing “little weight” on the reference to the Indian Constitution in the country background note, and concluding she was able to return to India with a replacement passport of the one she used to travel to India, and noting the absence of any evidence “that her dual-nationality would materially affect this” [35].
The Grounds of Appeal
7. The grounds of appeal concern procedural unfairness. In summary, the appellant’s submission is that given the parties were arguing she was either an Afghan national (on her case) or an Indian national (the respondent’s case), the appellant was not on notice of the possibility the judge would conclude she was a dual-national. Dual nationality had not be raised in the respondent’s refusal letter. The judge had not heard submissions from the parties about dual nationality and the effect it would have on her protection claim. The hearing before the First-tier Tribunal was therefore procedurally unfair because the judge had decided the case on the basis of the appellant being a dual national, in circumstances where it had not been apparent to the parties that this was in issue or the judge would decide the appeal on that basis.
The Hearing before the Upper Tribunal
8. At the hearing, Ms Jegarajah indicated the appellant did not take any issue with the judge’s factual findings, save the judge’s ultimate conclusion that the appellant was a dual national. Ms Jegarajah submitted the appellant’s case is twofold. First, her identity is the one stated on her Tazkira, not the one stated on her Indian passport, which contains an alias name and date of birth. Second, the appellant’s nationality is Afghan and not Indian because despite having had a genuine Indian passport, the appellant cannot be an Indian national because the country background note for India from 2019 demonstrates that India does not accept dual nationality. Ms Jegarajah invited me to find the judge had made a material error of law, and either allow the appeal outright, or alternatively retain the appeal in the Upper Tribunal for a re-making hearing.
9. Ms Isherwood for the respondent initially submitted the judge had not materially erred in law because she had been correct to find the appellant was a national of India, applying Hussein and Another (Status of passports: foreign law) [2020] UKUT 00250 (IAC) in which the Vice-President of the Upper Tribunal ruled: “a person who holds a genuine passport, apparently issued to him, and not falsified or altered, has to be regarded as a national of the State that issued the passport”. However, Ms Isherwood accepted the matter of dual nationality had not been raised by or before the parties at the time of the hearing, and the only evidence before the First-tier Tribunal about dual nationality had been the country background note for India from 2019, rather than any expert evidence on either Indian or Afghan law, in relation to dual nationality. Ms Isherwood, did not express a view on whether, if I found a material error of law, the appeal should be remitted to the First-tier Tribunal, or retained in the Upper Tribunal for re-making but queried whether the judge’s findings could be sustained as the issue was one of procedural fairness, and the appellants credibility was in issue because she had apparently obtained the Indian passport by providing false information about her identity.
Decision
10. I find the First-tier Tribunal judge made a material error of law.
11. The judge was faced with competing submissions: either the appellant was (a) an Indian national, or (b) an Afghan national. In the refusal letter, the respondent stated the appellant was an Indian national, not an Afghan national, and did not countenance any possibility the appellant might be a dual-national. In the first instance skeleton argument, the appellant submitted she was an Afghan national and argued the respondent had not proved on the balance of probabilities she was Indian rather than Afghan. However, the judge did not decide between the two competing submissions but rather decided the appeal on the basis the appellant was a dual-national. It was procedurally unfair for the judge to do so, given neither party had argued the case in that way, and in circumstances in which the judge had not put the parties on notice that the case might be decided on the basis of dual-nationality. Neither party had been provided with an opportunity to make submissions to the judge about the issue and this was procedurally unfair given the judge’s finding the appellant was a dual national was determinative of the outcome of her appeal.
12. These procedural errors are material because a differently constituted Tribunal might not reach the same conclusion as the First-tier Tribunal Judge about the appellant being a dual national. As submitted by the appellant there appears to be some evidence to suggest neither Indian law, nor Afghan law permits dual-nationality. However, foreign law must be proved by expert evidence: CS and Others (Proof of Foreign Law) India UKUT 00199 (IAC) [16] and Hussein and Another (Status of passports: foreign law) [2020] UKUT 00250 (IAC) [9] also referring to R(MK) v SSHD [2017] EWHC 1365 (Admin) at [5]-[8]. Thus, whether or not the appellant remains an Afghan national because of her Tazkira, or is an Indian national because of her passport, or holds dual-nationality will need to be considered on the basis of expert evidence. Given it is possible that, with the benefit of evidence and having considered submissions on the issue, a differently constituted Tribunal might conclude the appellant is an Afghan national, the error of law is material.
13. Having considered and applied the guidance in paragraph 7 of the Senior President's Practice Statement, as well as the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 46 (IAC), I am satisfied that retaining the appeal for re-making in this Tribunal is appropriate. Although the errors of law relate to procedural unfairness, they do not permeate the entire Decision. Most of the judge’s factual findings are not affected by the error of law and can be retained. I am reinforced in reaching this conclusion because the respondent has not served a Rule 24 Notice challenging the judge’s findings. Further, although Ms Isherwood highlighted the appellant’s credibility was in issue because she had apparently obtained an Indian passport using an alias identity, this formed part of the case before the First-tier Tribunal and does not require any additional fact-finding, because it is not in issue between the parties. Thus, considering the limited nature of the remaining fact-finding, which will either entirely or principally relate to additional expert evidence, it is appropriate to retain the case in the Upper Tribunal.
14. The appeal will be listed for a case management hearing. By the date of the case management hearing, the appellant should have had sufficient time to identify appropriate additional expert evidence. The appellant should also be in a position to address the ambit of the proposed expert evidence, which might usefully address: whether the appellant remains an Afghan national (as evidenced by her Tazkira), or whether she is an Indian national (as evidenced by her Indian passport), or whether it is possible that she is a dual-national and can therefore be returned to India upon provision of a replacement passport. The timeline for the expert evidence, whether there is a need for any additional evidence from either party, and further directions can then be made at the case management hearing. Further, I record that during the hearing before the Upper Tribunal, Ms Isherwood indicated there is a separate case before the Upper Tribunal which likewise concerns an Afghan national, who had obtained an Indian passport illicitly. If relevant, this can be considered at the case management hearing.
Notice of Decision and Directions
1. The Decision of the First-tier Tribunal dated 13 December 2024 contained material errors of law and is set aside.
2. This matter is retained in the Upper Tribunal with the following findings preserved:
(a) A copy of a Tazkira provided by the appellant was an authentic document [28].
(b) At the point the Tazkira was obtained, 7 May 2013, the appellant was accepted by the Afghan authorities as an Afghan national [28] born in Khost.
(c) The appellant grew up in Afghanistan, lived in Moscow for 13 years and then moved to India for a short time [30].
(d) Significant weight could be given to the expert reports insofar as they evidenced that the appellant’s speech and language are consistent with Afghan Sikhs, including Pashto, Dari and Kabuli Punjabi [29].
(e) The appellant had travelled to Ireland [22] using an Indian passport before coming to the United Kingdom. It was more likely than not to be a genuine passport [33].
3. The judge’s findings on nationality are not preserved [33 - 35]. The judge’s finding that the appellant will be able to return to India on a replacement Indian passport [33] is not preserved.
4. The issues that remain to be determined by this Tribunal include whether the appellant is an Afghan national, or an Indian national, or a dual-national.
5. A case management hearing is to be listed before the Upper Tribunal not before 21 days after this Decision is promulgated, to enable the appellant to consider what expert evidence will be provided in relation to the issues relating to dual-nationality.
6. At the case management hearing, the Upper Tribunal will consider what further directions may need to be made in relation to expert evidence, any further evidence from either party, and skeleton arguments.

Kathryn Howarth

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 September 2025