Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001965

First-tier Tribunal No: PA/63149/2024
LP/00512/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 23rd of September 2025

Before

UPPER TRIBUNAL JUDGE GREY

Between

DP
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Kannangara, Lion Court Chambers
For the Respondent: Ms Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 15 September 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS
1. The appellant is a citizen of Sri Lanka. He appeals against the decision of First-tier Tribunal (‘FTT’) of 11 March 2025 dismissing his protection appeal. The appellant claimed asylum on 12 October 2022 after the asylum related provisions of the Nationality and Borders Act 2022 came into force.
The FTT decision and grounds of appeal
2. Following a hearing on 21 February 2024 in the FTT virtual region, the FTT Judge dismissed the appellant’s appeal. The appellant claims to have a well-founded fear of persecution and/or is at risk of serious harm from the Sri Lankan authorities owing to his actual or imputed political beliefs.
3. At [21] of the decision the Judge found the appellant’s claim to fear persecution lacks credibility. There follows at [22] to [25] four specific matters which the Judge found supported his conclusion on credibility, including: the lack of reference to the appellant’s wife in his account; the lack of supporting evidence from D’s wife who would have been able to corroborate significant parts of the appellant’s claim; why the appellant left his place of hiding to return to Columbo; and, inconsistences in the appellant’s account about whether he was able to see D’s body after he had been killed.
4. Referencing the relevant country guidance the Judge accepted that bribery to be released from detention is common in Sri Lanka but found that the guidance regarding the authorities did not address the credibility concerns identified.
5. Having first assessed the asylum claim on the balance of probabilities, the Judge went on to find that the appellant’s claims were not reasonably likely to be true for the same reasons and dismissed his appeal on all protection grounds.
6. The appellant sought permission to appeal asserting that the Judge erred in the following respects:
1) Making an error of fact in finding that the appellant’s wife played no part in his account and failing to explain what she was doing while he was in hiding.
2) Finding that D’s wife could have corroborated the appellant’s account.
3) Making adverse findings in respect of the appellant’s return from hiding.
4) Making findings in respect of seeing D’s body at the hospital.
5) Failing to make findings in respect of Article 3 on the correct standard of proof.
7. In a decision dated 1 May 2025 permission was granted by the FTT on grounds 1 to 4. Permission was refused in respect of ground 5. The decision states:
3. In respect of ground 1, it is arguable that the Judge has made an error of fact in finding at [22] that the Appellant had not explained why his wife was not contacted by the police, or what she was doing while he was in hiding, as the Appellant’s evidence was that he had been separated from his wife for a number of years.
4. I have considered carefully whether any arguable error was material as the decision does not record an explicit finding that this was considered adverse to the Appellant’s credibility. It is, however, within the passage of the decision beginning at [21] in which the Judge records that the Appellant is not credible for a number of reasons. I am accordingly satisfied that this has fed into the Judge’s overall decision making such that it is arguably a material error.
5. I am also satisfied that there is an arguable error in respect of ground 4, in that the Judge has described at [25] an “inexplicable” discrepancy while the grounds assert that this was not something that had been raised by the Respondent, or that was put to the Appellant in cross examination. It is therefore arguable that there was procedural unfairness in making such an adverse finding.
6. I am less persuaded by grounds 2-3 but as these are closely linked to grounds 1 and 4 in that they also relate to findings of fact, I do not restrict the grant of permission in respect of these.
8. There was no rule 24 response from the Secretary of State.
The error of law hearing and decision
9. Ms Ahmed indicated that the respondent intended to oppose the appellant’s appeal.
10. Having heard brief submissions from both representatives I indicated that I would allow the appeal on the basis that the FTT Judge had made material errors of law of the nature asserted and identified at [3] to [5] of the grant of permission decision. I now set out my brief reasons confirming the decision given at the hearing.
11. In respect of ground 1 Ms Ahmed accepted that there was a mistake of fact made by the Judge at [22] of the decision but sought to persuade me that it was not a material error.
12. At the appellant’s screening interview on 18 October 2022, he stated that he had been separated from his wife for seven years and did not know her current whereabouts. This would indicate that the appellant had last seen his wife around 2015. The events which form the basis of the appellant’s asylum claim started in March 2018. In these circumstances, I find that the Judge made his credibility findings in respect of the matters identified in ground 1 on a mistaken factual basis.
13. Considering the decision as a whole, and having particular regard to the preceding passage at [21], it is apparent that the Judge’s finding based upon a mistaken understanding of the situation regarding the appellant's estranged wife was a material matter in his assessment of the credibility of the appellant’s account. It was indeed the first credibility matter addressed in the decision. It was one of just four specific issues identified in the decision in relation to credibility. The Judge dismissed the appellant’s protection claim on the basis of the adverse credibility findings. Taken together with ground 4, I have no difficulty in finding that the Judge materially erred in law in respect of this matter.
14. I accept Ms Ahmed’s submission in relation to ground 4 that it is not known whether the appellant was cross-examined about a perceived inconsistency in relation to appellant's evidence of whether he was able to see D’s body after he was shot dead.
15. Ms Ahmed accepted that the respondent had not raised this perceived inconsistency, addressed at [25] of the decision, in either the refusal decision or the respondent’s review. The grounds assert that the appellant was not questioned on this matter at the hearing. In the absence of a full record of proceedings and in view of the fact there is no reference in the decision to the appellant having this matter put to him at the hearing, I have approached my assessment on the basis that the appellant did not have the opportunity to address this concern.
16. The finding at [25] of the decision was one of four specific matters identified by the Judge in his credibility findings. It was not raised by the respondent. It is also questionable whether the appellant was indeed inconsistent on this point. I find there is some force to the submissions in the grounds that the appellant has been consistent in his account in this regard, although this will be a matter on which the FTT will need to make findings at a de novo hearing.
17. In Ms Ahmed’s submission it was clear from the refusal decision that the respondent challenged the credibility of the appellant’s account in some respects. However, in the refusal decision the respondent accepts the appellant is a supporter of the UNP and accepts that D died due to his involvement with the LTTE.
18. Relying on Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ 1455 which considers the Court of Appeal decision in Secretary of State For the Home Department v Maheshwaran [2002] EWCA Civ 173 at [30], Ms Ahmed submitted that it was not the case that all inconsistencies always need to be put to a party. I accept this proposition in general terms but as stated in Maheshwaran the requirements of fairness are very much conditioned by the facts of each case.
19. As already stated, on the basis of the documentation before me, I consider that it is at least arguable that the appellant has been consistent on the issue in question. If this matter had been put to the appellant at the hearing for explanation it is possible the Judge would not have found the appellant to have been inconsistent instead of finding an “inexplicable discrepancy”. The appellant’s representative would have been on notice that this was a matter of concern to the Judge and in submissions would have been able to address the appellant’s evidence on this issue in the terms set out in the grounds. In this case, where certain aspects of the appellant’s account have been accepted by the respondent and the appellant’s account was not rejected in its entirety on credibility grounds, I find that the Judge materially erred in respect of this matter and there was procedural unfairness to the appellant in not directly putting the perceived inconsistency to the appellant at the hearing.
20. I find that the Judge erred in respect of two of the four specific matters identified in support of his conclusion that the appellant’s account lacked credibility. Considering the decision and findings as a whole, I conclude that the errors identified were material to the outcome of the appeal and that the credibility findings of the Judge are consequently unsafe.
21. Since the appellant’s appeal was dismissed on the basis of the Judge’s assessment of credibility and I have found there was procedural unfairness and unsafe credibility findings, the decision must be set aside in its entirety and the appeal remitted for a de novo hearing in the FTT.
Notice of Decision
The decision of the First-tier Tribunal involved the making of material errors on a point of law and is set aside with no findings preserved.
The appeal is remitted to the First-tier Tribunal to be heard afresh by any judge other than Judge Ficklin.

Sarah Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 September 2025