UI-2025-001797
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The decision
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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001797
First-tier Tribunal No: HU/57197/2022
IA/10438/2022
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 18th November 2025
Before
UPPER TRIBUNAL JUDGE REEDS
Between
H A
(ANONYMITY ORDER CONTINUED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Hussain, Counsel instructed on behalf of the appellant
For the Respondent: Mr Wayne, Senior Presenting Officer on behalf of the respondent
Heard at IAC on 27 October 2025
DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal (hereinafter referred to as the “FtTJ”) who dismissed the appeal against the decision made to refuse his protection and human rights claim in a decision promulgated on 1 September 2023.
2. The FtTJ made an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim and the evidence that is associated with the appellant’s claim and that his rights protected under Article 8 outweigh the right of the public to know his identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed below.
3. 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.
The background:
4. The background to the appeal is set out in the evidence and in the decision of the FtTJ. The appellant is a national of Egypt. He left Egypt in 2013 to avoid military service, and he travelled to Libya where he remained for about a year before moving on to Italy. He stayed there for about two years then he went to France where he remained until he entered the UK clandestinely on 31 March 2021, claiming asylum the same day.
5. The basis of his claim was that he would be at risk on return to Egypt because of his avoidance of military service and the conditions he would face would amount to persecution. In the alternative he would be entitled to humanitarian protection. The claim made by the appellant was that when in Egypt he was required to undertake military service and that he completed training and after 45 days was told he would be deployed to Sinai, so he left. He therefore asserted that he would be at risk on return to Egypt as a result of having deserted from military service where he would be imprisoned and would be subject to disproportionately harsh or severe treatment.
6. The FtTJ recorded the respondent’s position at paragraph 8, that the appellant left Egypt to avoid conscription and that he would be considered a draft evader. It is also recorded that it was accepted that he left because he did not want to be posted to Sinai in area of military conflict.
7. The appellant appealed the decision which came before the FtTJ and in his decision the appeal was dismissed on both protection and human rights grounds. The FtTJ found that the appellant had joined the army to undertake military service and that his evidence made it clear that he did not object to joining the army per se and that he would have stayed but for the fact that he was being sent to fight in Sinai. The FtTJ addressed the issue of whether there was a Refuge Convention ground by reference to the relevant authorities (see paragraph 13) but reached the conclusion between paragraphs 15 – 16 that he was conscripted to the army (not national service) and the evidence did not demonstrate military service encompasses. Compulsory labour. He rejected the submission that he would be sent to fight based on his background. As to his position as a deserter, the FtTJ found that the punishment for desertion had no limitation period but that it was likely that he would be punished either by a fine or imprisonment but that the conditions he might face would not amount to a breach of this article 3 rights.
8. The appellant sought permission to appeal that decision relying on 4 grounds. Permission was initially refused but on renewal was granted by Upper Tribunal Judge Grey on 29 May 2025 on all grounds.
9. The appeal was therefore listed before the Upper Tribunal. At the hearing Mr Hussain appeared on behalf of the appellant by way of a remote link and Mr Wayne, Senior Presenting Officer appeared on behalf of the Secretary of State. I indicated to the parties that the electronic filing system for the FtTJ was available to the Upper Tribunal by way of the “Judicial Case Management” filing system as relevant to ground 1 of the written grounds and as explained in the rule 24 response. Both parties provided their oral submissions.
Discussion:
10. I am grateful to the advocates for the helpful submissions made by each of them and how they have advanced their respective cases and their assistance given. The submissions are contained in the record of proceedings, and I will not rehearse them here. I will refer to them as relevant in the analysis of the issues raised.
11. Dealing with ground 1, the grounds are headed “failure to consider the expert report”. Mr Hussain has referred to the complete omission of any reference to the report dated 14 February 2023 in the decision of the FtTJ and relies upon the grant of permission where UTJ Grey set out in detail the material on the electronic filing My HMCTS in relation to this appeal and in particular as relevant to the expert report relied upon by the appellant.
12. In the grant of permission, UTJ Grey set out that the expert report dated 14/2/23 was submitted by letter dated 27/2/23 prior to the hearing on 18 August 2023. The only record of the event is in the “case notes” tab of the online case management system. Whilst she refers to case note 10, it is contained on case note 11. As a result of the letter sent by the appellant’s solicitors, and that additional evidence had been uploaded after the directions originally, a direction was sent on 28 February. This is entitled “direction 1”. The appellant’s representatives were informed that they were required to submit an application for the document to be admitted to the appeal. Following this an application was made setting out the reasons why the expert report was not submitted at the same time that the bundle was submitted. This application was made on 28 February 2023 and the electronic filing system records that the application was granted on 1 March 2023 and that the document (the expert report) was admitted notwithstanding its lateness but that “the document must be uploaded to the documents tab for all parties to view”.
13. By reference to the ground 1 UTJ Grey granted permission on the basis that it would appear that the appellant was granted leave to adduce the expert report but that it was not included in the stitched hearing bundle relied upon by the judge and that the report was not found on My HMCTS and also that the decision made no reference to the expert report at any point. Thus, permission was granted on the basis that the judge was unaware of potentially key evidence in respect of which the appellant sought and was granted permission to rely on.
14. Mr Hussain therefore submitted that the report was on the common platform and whilst it was not clear if counsel had referred to the report (by reference to the submission made in the rule 24 response) there was no reference made by the FtTJ to the report at all. He therefore submitted where there had been an expert report lodged with the tribunal it was evidence that should have been considered.
15. In this context Mr Hussain referred to the rule 24 response dated 6 June 2025 where it was said that there was no indication that the report was drawn the attention of the judge at the hearing and that reliance was placed on paragraph 11 where counsel referred him to the updated CPIN relevant to Egypt. Mr Hussain submitted that whilst there was nothing from counsel it would be surprising that a FtTJ would ignore a report and therefore this was a report which has not been considered.
16. He further submitted that whilst the respondent sought to argue that the lack of reference to he report was immaterial to the outcome, when a piece of evidence was available, and in particular evidence given in an expert report was available but was not considered, this would be a material error of law.
17. Thus, at the outset of the hearing and on the documents available an expert report had been commissioned on behalf of the appellant and was available and which had been admitted by the FtT for inclusion in the evidence in light of the order made on 1 March 2023. It is also right that the order stated that the document must be uploaded to the “documents” tab. It does not appear to have been included on the documents tab. Importantly it was not included in any stitched hearing bundle or any amended bundle. Based on that evidence permission to appeal was granted because it appeared that the judge was unaware of potentially key evidence which the appellant sought admission and was given permission to rely upon.
18. On the face of the Rule 24 response (dated 16/6/25) what is set out above appears to have been accepted. However, it was argued that there was no indication the expert report was specifically brought to the attention of the FtTJ and that this was the responsibility of those instructed by the appellant and regardless of whether it was before the FtTJ it was not material evidence or was not evidence that was material to the outcome.
19. At the hearing Mr Wayne relied on the rule 24 response, and he submitted that it was not clear where the fault lay but identified that there was no Rule (15(2)A application to admit the record of proceedings or any witness statement from Counsel.
20. In furtherance of the duty of candour, he stated that he checked the PO minute and that it recorded that at preliminary matters it was confirmed by the parties that they had seen the expert report but that the FtTJ said that he had not seen it and therefore it was pointed out to him. It was recorded that the PO referred to making submissions on the expert report but that there was no record of the appellant’s submissions. He did not seek to introduce that document into evidence.
21. Mr Hussain could not assist in relation to that matter as he was not counsel who appeared before the FtTJ and he had not been provided with any witness statement/notes of the hearing, which he stated was unfortunate. However, he submitted that it was now clear that a material piece of evidence in the form of an expert report was available to the judge but that it had not been demonstrated that he had considered its contents when assessing the overall claim and in the circumstances it could not be said that it was not material to the outcome or would not make a difference to the outcome. He therefore sought to argue that the submissions made in relation to ground one and that the FtTJ had failed to consider a highly material piece of evidence and one which had not even been mentioned in the decision or during his analysis.
22. Based on the circumstances as they have now been explained to this Tribunal, whilst the report was late, permission plainly had been given for its admission subject to it being put on to the “documents” tab. It does not appear that that happened but in any event both the presenting officer and the appellant’s counsel were aware of the report and its contents and importantly brought this to the attention of the FtTJ at the stage before the hearing commenced. It is therefore not the position as initially thought that the FtTJ was unaware of the existence of the report.
23. The issue therefore arises as to why no reference was made to this report in his analysis of the evidence and his ultimate decision. I would accept that the failure to consider evidence particularly an expert report would be an error of law. As Mr Hussain submits a report was commissioned from an expert to address a number of issues relevant to the issue of risk on return and in the particular context relevant to military service punishment/prosecution and ultimately to assess the risk. However, I accept the submission made by Mr Wayne that in the particular circumstances of the appeal, the issue of materiality does arise.
24. Mr Wayne relied upon the rule 24 response and submitted that the specific challenge raised in ground one is not made out because the expert was not instructed to consider prison conditions in the context of a breach of article 3 of the ECHR. I have therefore considered the grounds in the context of the report.
25. Ground one is headed “failure to consider the expert report”. Paragraph 3 of the grounds reads as follows: “the FtTJ fails to consider the expert report which supports the appellant’s account that he would face imprisonment in conditions that would amount to a breach of article 3. An application was made on HMCT which was granted. Evidence of that is attached to these grounds.. “
26. Nothing further is said about that ground. However, the report (now set out in the UT bundle at page 252) refers to being instructed on a number of issues set out between paragraphs 19 – 25. None of those issues referred to the position of prison conditions and whether they would amount to a breach of article 3. I reject the submission made by Mr Hussain that paragraph 19 refers to article 3 mistreatment. All paragraph 19 refers to is whether his absconding the military service put’s his life at risk of prosecution or persecution on return or both. It does not refer either directly or inferentially to conditions in prison or whether they breach the article 3 threshold. Nor does the body of the report deal with prison conditions. The thrust of the report addresses the risk of prosecution for deserters and whether it would be a fine or imprisonment and also the length of imprisonment but did not address prison conditions in the context of article 3.
27. Therefore, I conclude that notwithstanding the lack of reference to the report, it has not been shown that ground one in the context upon which is relied and expressly by reference to the report and prison conditions is not established as the report did not deal with that issue.
28. This however cannot be seen in isolation and leads to consideration of grounds two and three. Having heard the submissions of both advocates I am satisfied that the omission of any reference or analysis of the report is material to the outcome in the context of the adequacy of reasoning in the overall conclusion. It is important to note that whilst the report and the objective evidence referred to draft evasion and desertion, the finding made was that the appellant was not a draft evader and that to the contrary he attended for military service had done 45 days but left because he did not want to go to Sinai and was therefore a deserter. Whilst Mr Wayne is right in his submission that the FtTJ did give reasons why the appellant would not be subject to the severe penalty at paragraph 19 by reference the death penalty, the grounds which I accept are not as clear as they could be does not only refer to the death penalty but other aspects of the possible sentence as seen by the reference to “severe”.
29. What the FtTJ set out at paragraph 19 is consistent with the CPIN at paragraph 17.12.1 and the source material from the EASO response of October 2015 that the appellant would be subject to prosecution under (1) as a deserter or attempting to desert from the service of the Armed Forces. On the facts as found the appellant fell within that category. He did not however fall within category 2 which described the person who enabled or attempted to enable someone to desert from the battlefield. In relation to that the penalty in law was potentially the death penalty or a lesser punishment as the FtTJ set out. Thus, the FtTJ was not in error in finding that the appellant would not fall within category (2) but that he fell within category (1). That is also replicated in the expert report at paragraph 59 where he sets out the same evidence.
30. However, the expert report was of relevance to the issue as set out in paragraph 6 of the grounds. The FtTJ reached the conclusion that the appellant would be either fined or imprisoned (see conclusion at paragraph 23) and that the conditions he might face would not amount to a breach of his article 3 rights. The expert report addressed the issue of possible punishment and did so on the basis that there was a lack of evidence publicly available concerning punishment for desertion, but he provided an opinion that he was likely to be imprisoned (rather than fined). Whilst the FtTJ appeared to reach a similar view although he did refer to the appellant being subject to a fine as a possible outcome in his conclusion at paragraph 23 he made no assessment as to either the possible length of the sentence, who would sentence him (either the ordinary courts or the military courts) or whether the appellant would receive a harsher punishment in the circumstances of his desertion and due to his educational level, which were issues taken into account in the report at paragraph 66 – 67. They were issues raised in the report and arguably relevant to the assessment of the conditions he was likely to be held. The original ASA highlighted two articles as relevant to prison conditions by way of hyperlinks alongside the material set out in the grounds at ground 3 which are taken from a different part of the CPIN (17.13) rather than the reference given by the FtTJ.
31. The FtTJ therefore did not resolve that issue with any reasoning or by reference the expert report or why he rejected those opinions as given. It is not known whether the FtTJ even accepted that the author of the report could be considered an “expert” in the issue that he had given an opinion on or why he preferred material in the CPIN. Whether the FtTJ would have rejected the report is not known and in the circumstances where a report has been commissioned to deal with relevant issues it was incumbent on the judge to assess that evidence. His task was not made easier by the way in which late evidence been supplied and that it was not readily accessible. Nor was there an updated skeleton argument and where evidence like that is provided, it would assist any judge to either have an addendum to the ASA to see what is being relied upon so that no ambiguity can arise.
32. Dealing with ground 4, it is not established. The FtTJ did address the issue of the Refugee Convention ground and paragraphs 10 – 13 are consistent with the present law on the requirement to perform military service (see the law relating to refugee status and military service as summarised in headnote of PK and OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 (IAC)) and the FtTJ addressed the way in which this was argued between paragraphs 14 – 16 finding that the evidence did not establish that he would be sent to fight because of his background. The grounds do not identify any evidence to undermine that finding . The grounds do not either explain how the circumstances would even form a “particular social group” within that definition.
33. It is right to note that the expert report did provide detail about the issue of military conduct in Sinai, but it was not explained in the grounds that it was related to the submissions addressed at paragraph 16.
34. Nonetheless for the reasons given in relation to grounds two and three, it establishes that there was a failure to take into account evidence which on the face of it was material to the assessment of risk and formed part of the overall evidence. That report had not been assessed for the reasons given and it cannot be assumed that the FtTJ considered it and rejected it, and the appellant was entitled to know why evidence relied upon if it had been rejected why that was the case.
35. Mr Hussain submitted that the decision should be set aside and remitted. Having considered the practice statement recited and the decision of the Court of Appeal in AEB v SSHD [2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective I am satisfied that the appeal falls within paragraph 7.2 (a) and (b) and as it will be necessary to undertake an assessment of all the factual evidence, oral and documentary, make findings of fact and assess the appeal within the relevant legal framework when reaching a decision. There is a new CPIN date June 2025 relevant to the issues for this appeal.
Notice of Decision
The decision of the FtTJ involved the making of a material error of law and the decision to dismiss the appeal shall be set aside. It shall be remitted to the FtT for a hearing with no findings preserved.
Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds
Dated: 13 November 2025
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001797
First-tier Tribunal No: HU/57197/2022
IA/10438/2022
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 18th November 2025
Before
UPPER TRIBUNAL JUDGE REEDS
Between
H A
(ANONYMITY ORDER CONTINUED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Hussain, Counsel instructed on behalf of the appellant
For the Respondent: Mr Wayne, Senior Presenting Officer on behalf of the respondent
Heard at IAC on 27 October 2025
DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal (hereinafter referred to as the “FtTJ”) who dismissed the appeal against the decision made to refuse his protection and human rights claim in a decision promulgated on 1 September 2023.
2. The FtTJ made an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim and the evidence that is associated with the appellant’s claim and that his rights protected under Article 8 outweigh the right of the public to know his identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed below.
3. 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.
The background:
4. The background to the appeal is set out in the evidence and in the decision of the FtTJ. The appellant is a national of Egypt. He left Egypt in 2013 to avoid military service, and he travelled to Libya where he remained for about a year before moving on to Italy. He stayed there for about two years then he went to France where he remained until he entered the UK clandestinely on 31 March 2021, claiming asylum the same day.
5. The basis of his claim was that he would be at risk on return to Egypt because of his avoidance of military service and the conditions he would face would amount to persecution. In the alternative he would be entitled to humanitarian protection. The claim made by the appellant was that when in Egypt he was required to undertake military service and that he completed training and after 45 days was told he would be deployed to Sinai, so he left. He therefore asserted that he would be at risk on return to Egypt as a result of having deserted from military service where he would be imprisoned and would be subject to disproportionately harsh or severe treatment.
6. The FtTJ recorded the respondent’s position at paragraph 8, that the appellant left Egypt to avoid conscription and that he would be considered a draft evader. It is also recorded that it was accepted that he left because he did not want to be posted to Sinai in area of military conflict.
7. The appellant appealed the decision which came before the FtTJ and in his decision the appeal was dismissed on both protection and human rights grounds. The FtTJ found that the appellant had joined the army to undertake military service and that his evidence made it clear that he did not object to joining the army per se and that he would have stayed but for the fact that he was being sent to fight in Sinai. The FtTJ addressed the issue of whether there was a Refuge Convention ground by reference to the relevant authorities (see paragraph 13) but reached the conclusion between paragraphs 15 – 16 that he was conscripted to the army (not national service) and the evidence did not demonstrate military service encompasses. Compulsory labour. He rejected the submission that he would be sent to fight based on his background. As to his position as a deserter, the FtTJ found that the punishment for desertion had no limitation period but that it was likely that he would be punished either by a fine or imprisonment but that the conditions he might face would not amount to a breach of this article 3 rights.
8. The appellant sought permission to appeal that decision relying on 4 grounds. Permission was initially refused but on renewal was granted by Upper Tribunal Judge Grey on 29 May 2025 on all grounds.
9. The appeal was therefore listed before the Upper Tribunal. At the hearing Mr Hussain appeared on behalf of the appellant by way of a remote link and Mr Wayne, Senior Presenting Officer appeared on behalf of the Secretary of State. I indicated to the parties that the electronic filing system for the FtTJ was available to the Upper Tribunal by way of the “Judicial Case Management” filing system as relevant to ground 1 of the written grounds and as explained in the rule 24 response. Both parties provided their oral submissions.
Discussion:
10. I am grateful to the advocates for the helpful submissions made by each of them and how they have advanced their respective cases and their assistance given. The submissions are contained in the record of proceedings, and I will not rehearse them here. I will refer to them as relevant in the analysis of the issues raised.
11. Dealing with ground 1, the grounds are headed “failure to consider the expert report”. Mr Hussain has referred to the complete omission of any reference to the report dated 14 February 2023 in the decision of the FtTJ and relies upon the grant of permission where UTJ Grey set out in detail the material on the electronic filing My HMCTS in relation to this appeal and in particular as relevant to the expert report relied upon by the appellant.
12. In the grant of permission, UTJ Grey set out that the expert report dated 14/2/23 was submitted by letter dated 27/2/23 prior to the hearing on 18 August 2023. The only record of the event is in the “case notes” tab of the online case management system. Whilst she refers to case note 10, it is contained on case note 11. As a result of the letter sent by the appellant’s solicitors, and that additional evidence had been uploaded after the directions originally, a direction was sent on 28 February. This is entitled “direction 1”. The appellant’s representatives were informed that they were required to submit an application for the document to be admitted to the appeal. Following this an application was made setting out the reasons why the expert report was not submitted at the same time that the bundle was submitted. This application was made on 28 February 2023 and the electronic filing system records that the application was granted on 1 March 2023 and that the document (the expert report) was admitted notwithstanding its lateness but that “the document must be uploaded to the documents tab for all parties to view”.
13. By reference to the ground 1 UTJ Grey granted permission on the basis that it would appear that the appellant was granted leave to adduce the expert report but that it was not included in the stitched hearing bundle relied upon by the judge and that the report was not found on My HMCTS and also that the decision made no reference to the expert report at any point. Thus, permission was granted on the basis that the judge was unaware of potentially key evidence in respect of which the appellant sought and was granted permission to rely on.
14. Mr Hussain therefore submitted that the report was on the common platform and whilst it was not clear if counsel had referred to the report (by reference to the submission made in the rule 24 response) there was no reference made by the FtTJ to the report at all. He therefore submitted where there had been an expert report lodged with the tribunal it was evidence that should have been considered.
15. In this context Mr Hussain referred to the rule 24 response dated 6 June 2025 where it was said that there was no indication that the report was drawn the attention of the judge at the hearing and that reliance was placed on paragraph 11 where counsel referred him to the updated CPIN relevant to Egypt. Mr Hussain submitted that whilst there was nothing from counsel it would be surprising that a FtTJ would ignore a report and therefore this was a report which has not been considered.
16. He further submitted that whilst the respondent sought to argue that the lack of reference to he report was immaterial to the outcome, when a piece of evidence was available, and in particular evidence given in an expert report was available but was not considered, this would be a material error of law.
17. Thus, at the outset of the hearing and on the documents available an expert report had been commissioned on behalf of the appellant and was available and which had been admitted by the FtT for inclusion in the evidence in light of the order made on 1 March 2023. It is also right that the order stated that the document must be uploaded to the “documents” tab. It does not appear to have been included on the documents tab. Importantly it was not included in any stitched hearing bundle or any amended bundle. Based on that evidence permission to appeal was granted because it appeared that the judge was unaware of potentially key evidence which the appellant sought admission and was given permission to rely upon.
18. On the face of the Rule 24 response (dated 16/6/25) what is set out above appears to have been accepted. However, it was argued that there was no indication the expert report was specifically brought to the attention of the FtTJ and that this was the responsibility of those instructed by the appellant and regardless of whether it was before the FtTJ it was not material evidence or was not evidence that was material to the outcome.
19. At the hearing Mr Wayne relied on the rule 24 response, and he submitted that it was not clear where the fault lay but identified that there was no Rule (15(2)A application to admit the record of proceedings or any witness statement from Counsel.
20. In furtherance of the duty of candour, he stated that he checked the PO minute and that it recorded that at preliminary matters it was confirmed by the parties that they had seen the expert report but that the FtTJ said that he had not seen it and therefore it was pointed out to him. It was recorded that the PO referred to making submissions on the expert report but that there was no record of the appellant’s submissions. He did not seek to introduce that document into evidence.
21. Mr Hussain could not assist in relation to that matter as he was not counsel who appeared before the FtTJ and he had not been provided with any witness statement/notes of the hearing, which he stated was unfortunate. However, he submitted that it was now clear that a material piece of evidence in the form of an expert report was available to the judge but that it had not been demonstrated that he had considered its contents when assessing the overall claim and in the circumstances it could not be said that it was not material to the outcome or would not make a difference to the outcome. He therefore sought to argue that the submissions made in relation to ground one and that the FtTJ had failed to consider a highly material piece of evidence and one which had not even been mentioned in the decision or during his analysis.
22. Based on the circumstances as they have now been explained to this Tribunal, whilst the report was late, permission plainly had been given for its admission subject to it being put on to the “documents” tab. It does not appear that that happened but in any event both the presenting officer and the appellant’s counsel were aware of the report and its contents and importantly brought this to the attention of the FtTJ at the stage before the hearing commenced. It is therefore not the position as initially thought that the FtTJ was unaware of the existence of the report.
23. The issue therefore arises as to why no reference was made to this report in his analysis of the evidence and his ultimate decision. I would accept that the failure to consider evidence particularly an expert report would be an error of law. As Mr Hussain submits a report was commissioned from an expert to address a number of issues relevant to the issue of risk on return and in the particular context relevant to military service punishment/prosecution and ultimately to assess the risk. However, I accept the submission made by Mr Wayne that in the particular circumstances of the appeal, the issue of materiality does arise.
24. Mr Wayne relied upon the rule 24 response and submitted that the specific challenge raised in ground one is not made out because the expert was not instructed to consider prison conditions in the context of a breach of article 3 of the ECHR. I have therefore considered the grounds in the context of the report.
25. Ground one is headed “failure to consider the expert report”. Paragraph 3 of the grounds reads as follows: “the FtTJ fails to consider the expert report which supports the appellant’s account that he would face imprisonment in conditions that would amount to a breach of article 3. An application was made on HMCT which was granted. Evidence of that is attached to these grounds.. “
26. Nothing further is said about that ground. However, the report (now set out in the UT bundle at page 252) refers to being instructed on a number of issues set out between paragraphs 19 – 25. None of those issues referred to the position of prison conditions and whether they would amount to a breach of article 3. I reject the submission made by Mr Hussain that paragraph 19 refers to article 3 mistreatment. All paragraph 19 refers to is whether his absconding the military service put’s his life at risk of prosecution or persecution on return or both. It does not refer either directly or inferentially to conditions in prison or whether they breach the article 3 threshold. Nor does the body of the report deal with prison conditions. The thrust of the report addresses the risk of prosecution for deserters and whether it would be a fine or imprisonment and also the length of imprisonment but did not address prison conditions in the context of article 3.
27. Therefore, I conclude that notwithstanding the lack of reference to the report, it has not been shown that ground one in the context upon which is relied and expressly by reference to the report and prison conditions is not established as the report did not deal with that issue.
28. This however cannot be seen in isolation and leads to consideration of grounds two and three. Having heard the submissions of both advocates I am satisfied that the omission of any reference or analysis of the report is material to the outcome in the context of the adequacy of reasoning in the overall conclusion. It is important to note that whilst the report and the objective evidence referred to draft evasion and desertion, the finding made was that the appellant was not a draft evader and that to the contrary he attended for military service had done 45 days but left because he did not want to go to Sinai and was therefore a deserter. Whilst Mr Wayne is right in his submission that the FtTJ did give reasons why the appellant would not be subject to the severe penalty at paragraph 19 by reference the death penalty, the grounds which I accept are not as clear as they could be does not only refer to the death penalty but other aspects of the possible sentence as seen by the reference to “severe”.
29. What the FtTJ set out at paragraph 19 is consistent with the CPIN at paragraph 17.12.1 and the source material from the EASO response of October 2015 that the appellant would be subject to prosecution under (1) as a deserter or attempting to desert from the service of the Armed Forces. On the facts as found the appellant fell within that category. He did not however fall within category 2 which described the person who enabled or attempted to enable someone to desert from the battlefield. In relation to that the penalty in law was potentially the death penalty or a lesser punishment as the FtTJ set out. Thus, the FtTJ was not in error in finding that the appellant would not fall within category (2) but that he fell within category (1). That is also replicated in the expert report at paragraph 59 where he sets out the same evidence.
30. However, the expert report was of relevance to the issue as set out in paragraph 6 of the grounds. The FtTJ reached the conclusion that the appellant would be either fined or imprisoned (see conclusion at paragraph 23) and that the conditions he might face would not amount to a breach of his article 3 rights. The expert report addressed the issue of possible punishment and did so on the basis that there was a lack of evidence publicly available concerning punishment for desertion, but he provided an opinion that he was likely to be imprisoned (rather than fined). Whilst the FtTJ appeared to reach a similar view although he did refer to the appellant being subject to a fine as a possible outcome in his conclusion at paragraph 23 he made no assessment as to either the possible length of the sentence, who would sentence him (either the ordinary courts or the military courts) or whether the appellant would receive a harsher punishment in the circumstances of his desertion and due to his educational level, which were issues taken into account in the report at paragraph 66 – 67. They were issues raised in the report and arguably relevant to the assessment of the conditions he was likely to be held. The original ASA highlighted two articles as relevant to prison conditions by way of hyperlinks alongside the material set out in the grounds at ground 3 which are taken from a different part of the CPIN (17.13) rather than the reference given by the FtTJ.
31. The FtTJ therefore did not resolve that issue with any reasoning or by reference the expert report or why he rejected those opinions as given. It is not known whether the FtTJ even accepted that the author of the report could be considered an “expert” in the issue that he had given an opinion on or why he preferred material in the CPIN. Whether the FtTJ would have rejected the report is not known and in the circumstances where a report has been commissioned to deal with relevant issues it was incumbent on the judge to assess that evidence. His task was not made easier by the way in which late evidence been supplied and that it was not readily accessible. Nor was there an updated skeleton argument and where evidence like that is provided, it would assist any judge to either have an addendum to the ASA to see what is being relied upon so that no ambiguity can arise.
32. Dealing with ground 4, it is not established. The FtTJ did address the issue of the Refugee Convention ground and paragraphs 10 – 13 are consistent with the present law on the requirement to perform military service (see the law relating to refugee status and military service as summarised in headnote of PK and OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 (IAC)) and the FtTJ addressed the way in which this was argued between paragraphs 14 – 16 finding that the evidence did not establish that he would be sent to fight because of his background. The grounds do not identify any evidence to undermine that finding . The grounds do not either explain how the circumstances would even form a “particular social group” within that definition.
33. It is right to note that the expert report did provide detail about the issue of military conduct in Sinai, but it was not explained in the grounds that it was related to the submissions addressed at paragraph 16.
34. Nonetheless for the reasons given in relation to grounds two and three, it establishes that there was a failure to take into account evidence which on the face of it was material to the assessment of risk and formed part of the overall evidence. That report had not been assessed for the reasons given and it cannot be assumed that the FtTJ considered it and rejected it, and the appellant was entitled to know why evidence relied upon if it had been rejected why that was the case.
35. Mr Hussain submitted that the decision should be set aside and remitted. Having considered the practice statement recited and the decision of the Court of Appeal in AEB v SSHD [2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective I am satisfied that the appeal falls within paragraph 7.2 (a) and (b) and as it will be necessary to undertake an assessment of all the factual evidence, oral and documentary, make findings of fact and assess the appeal within the relevant legal framework when reaching a decision. There is a new CPIN date June 2025 relevant to the issues for this appeal.
Notice of Decision
The decision of the FtTJ involved the making of a material error of law and the decision to dismiss the appeal shall be set aside. It shall be remitted to the FtT for a hearing with no findings preserved.
Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds
Dated: 13 November 2025