Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001849

First-tier Tribunal No: PA/52496/2024
IA/00892/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18th November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE LAWRENCE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AS (PAKISTAN)
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Blackburn, Senior Home Office Presenting Officer
For the Respondent: Mr K Forrest , Counsel instructed by RH & Co Solicitors E

Heard at Field House on 13 November 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS
Introduction
1. The Secretary of State for the Home Department (“SSHD”) appeals against a decision by Judge Farrelly of the First-tier Tribunal (“FtT”), dated 19 February 2025, to dismiss an appeal by AS against a decision by the SSHD, dated 17 November 2024, to refuse a protection claim that was made by the Appellant by way of further submissions on 2 December 2022.
Anonymity
2. I maintain or make an order for anonymity because AS continues to rely upon international protection grounds. The importance of facilitating the discharge of the obligations of the United Kingdom (“UK”) under the Refugee Convention and European Convention on Human Rights (“ECHR”) outweighs the principle of open justice.
Background
3. AS made a first protection claim in the UK on 29 November 2007, at which time he was apparently aged 16. That claim was refused by the SSHD on 26 February 2008 but AS was granted Discretionary Leave until 15 April 2009. He did not exercise his right to appeal against the refusal of the protection claim. On 10 April 2009, he applied to extend his Discretionary Leave, which was refused in a decision dated 9 or 14 September 2011. He appealed to the FtT against the September 2011 decision, on Article 8 ECHR grounds only, but the appeal was dismissed in a decision dated 24 November 2011 (Judge Watters) and onward rights to appeal were exhausted on 25 January 2012 following unsuccessful application for permission to appeal to the Upper Tribunal (“UT”). On 3 August 2013, AS applied again for leave to remain, which was refused on 19 November 2015. On 2 December 2022, he made the further submissions that were refused by the SSHD as a fresh protection and human rights claim in the aforementioned decision of 17 November 2024 against which he appealed to the FtT.
4. The 2007 protection claim was described in the 17 November 2024 decision letter as a claim that ASs father was persecuted by a terrorist organisation in Pakistan and that AS was sent to the UK to ensure his safety. The 2 December 2022 protection claim is described in the 17 November 2024 decision as a claim that AS is a gay man who would have a well-founded fear of persecution on return to Pakistan for that reason.
5. AS’s appeal against the 17 November 2024 decision was heard on 15 January 2025 by Judge Farrelly. In their decision dated 19 February 2025, Judge Farrelly accepted AS’s claimed gay sexuality and the account he had given of a relationship. Judge Farrelly found it likely that AS would want to express himself as a gay man but that that would present difficulties for him in Pakistan. The judge found that AS would to an extent be likely to modify how that was displayed. However, that he would be modifying his behaviour out of fear rather than for personal reasons. Therefore, the judge accepted that AS had a well-founded fear of persecution relating to his sexuality.
The appeal to the Upper Tribunal
6. The SSHD applied to the FtT for permission to appeal to the UT against Judge Farrelly’s decision, which was refused by FtT Judge Elliott in a decision dated 15 April 2025. The SSHD then applied to the UT for such permission, which was granted by UT Judge Grey in a decision dated 18 June 2025. UT Judge Grey’s decision and reasons were expressed as follows (with the original emphasis, and noting Judge Grey’s references to the appellant and respondent as they were in relation to the appeal to the FtT):
“1. The respondent seeks permission to appeal the decision of First-tier Tribunal Judge Farrelly promulgated on 19 February 2025 allowing the appellant’s protection appeal on asylum grounds.
2. In respect of ground 1, in my view it is arguable that the Judge erred in failing to consider the report of the consultant clinical psychologist in line with HA (expert evidence, mental health) [2022] UKUT 00111. However, it is not apparent that any error in this regard was material to the Judge’s decision which appears to have been made on the basis the appellant had established his asylum claim on the basis of his sexuality. In respects of the other matters raised in ground 1 I am less persuaded as to their merit. However, in light of the matter raised as [4] below in relation to the standard of proof, it is arguable that the Judge’s assessment of the evidence as a whole is unsafe and for that reason I grant permission on ground 1.
3. It is arguable that the Judge erred in the manner and for the reasons asserted in ground 2 given that credibility was the central issue in this appeal.
4. A further matter arises which has not been raised in the grounds. I note that the appellant’s further submissions based on his sexuality are recorded as being raised on 2 December 2022. The Judge incorrectly states at [11] of the decision that “The relevant date for the naba (sic) provisions is the 22nd of June 2024”. At [27] of the decision it states that it was very difficult for the Judge to determine the appellant’s sexuality particularly as the evidence was very limited but goes to state that she “bear[s] in mind the low standard of proof”. Section 32 of the Nationality and Borders Act 2022 applies to asylum claims made on or after 28 June 2022. Whether the appellant is able to establish that he has a characteristic which could cause him to fear persecution for a Convention reason and whether he does in fact fear such persecution should be assessed on the balance of probabilities. It seems to me that this is a matter which is capable of being “Robinson obvious” (R v Secretary of State for the Home Department ex parte Robinson [1997] 3 WLR 1162) which the Upper Tribunal should consider at a hearing.
5. For the reasons set out above I grant permission on all grounds.”
7. AS has made no reply under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Pre-hearing concession
8. By a letter uploaded to the online case management platform on 12 November 2025, AS’s solicitors wrote:
“We are instructed by the appellant to indicate that the appeal is conceded, on the basis that the decision of the First-tier Tribunal (which was in the appellant's favour) be set aside and the matter remitted to the First-tier Tribunal for a fresh hearing before a different Judge.”
The hearing
9. At the start of the hearing, Mr Forrest confirmed that AS maintained the stance taken in the aforementioned 12 November 2025 letter, and that that concession was made on the basis that the FtT had materially erred in law by applying an incorrect standard of proof having failed to appreciate that because the protection claim by AS that was the subject of the appeal had been made after 28 June 2022, section 32 of the Nationality and Borders Act 2022 applied to it such that, when considering whether AS qualifies as a Refugee under the Convention, the FtT was required to assess AS’s credibility on a balance of probabilities rather than the standard of reasonable likelihood that the judge had erroneously applied in their material findings on AS’s credibility.
10. Ms Blackburn had nothing to add in relation to the issue of whether the FtT had materially erred in law.
11. Both representatives were neutral as to whether the appropriate disposal would be to remit the matter to the FtT to remake the appeal.
12. I declared that the SSHD’s appeal to the UT would be allowed, for the reasons on which AS’s concession was confirmed by Mr Forrest to have been made.
13. I also declared that I considered the error of law in the FtT’s decision was such that none of the findings made by the FtT would be preserved, and therefore that I considered it appropriate that the appeal to the FtT be remitted to the FtT for hearing afresh, being satisfied that the nature and extent of judicial fact finding that was necessary in order for the decision in the appeal to be re-made was such that, having regard to the overriding objective, it was appropriate to do so.
Error of law
14. The FtT materially erred in law by applying an incorrect standard of proof having failed to appreciate that because the protection claim by AS that was the subject of the appeal had been made after 28 June 2022, section 32 of the Nationality and Borders Act 2022 applied to it such that, when considering whether AS qualifies as a Refugee under the Convention, the FtT was required to assess AS’s credibility on a balance of probabilities rather than the standard of reasonable likelihood that the judge erroneously applied in their material findings on AS’s credibility.
Disposal
15. The error of law in the FtT’s decision is such that none of the findings made by the judge can be preserved, and therefore I consider it is appropriate that the appeal to the FtT be remitted to the FtT for hearing afresh I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective, it is appropriate to remit the case to the FtT.
Notice of Decision
The decision of the FtT involved the making of a material error on a point of law.
The decision of the FtT is set aside with no findings preserved.
The remaking of the decision in the appeal is remitted to the FtT, to be remade afresh by any judge other than Judge Farrelly.

T Lawrence
Judge Lawrence
Deputy Upper Tribunal Judge
Immigration and Asylum Chamber
14 November 2025