Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001982
First-tier Tribunal No: PA/52739/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20th April 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

ZA
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr K Jegede, solicitor, SAJ Legal Solicitors
For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer

Heard at Field House on 9 April 2026

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 appellant has been granted permission to appeal the decision of the First-tier Tribunal dismissing their appeal following a hearing which took place on 7 February 2025.
2. Permission to appeal was granted by Upper Tribunal Judge Grey on 2 February 2026.
Anonymity
3. I have continued the anonymity order made by the First-Tier Tribunal. I have considered the public interest in open justice but conclude that it is outweighed by the importance of facilitating the discharge of the United Kingdom’s obligations to those claiming international protection because of the need for confidentiality.
Factual Background
4. The appellant is a national of Kyrgyzstan now aged twenty-five. On 23 May 2022, the appellant applied for a visa to enter the United Kingdom as a seasonal worker. That application was granted on 16 June 2022 for a period of six months.
5. On 9 November 2022, the appellant applied for asylum. The basis of that application is as follows. The appellant became involved in organising a political rally, which took place on 27 April 2021, which led to the arrests of some of the protestors, including the co-organiser. The appellant left for Moscow in June 2021 where he worked for nearly year. On his return to Kyrgyzstan in May 2022, the appellant was summoned to the police station, questioned and beaten. He was then released. After arriving in the United Kingdom, the appellant’s mother informed him that he had been summoned to return to the police station.
6. By way of a decision dated 26 January 2024, the respondent refused the appellant’s protection claim. In short, the respondent did not accept that the appellant had come to the adverse attention of the Kyrgyzstan authorities owing to inconsistent aspects of his account for which it was said that there was no reasonable explanation. In the alternative, the respondent concluded that even if the appellant’s claims were accepted, he would not be at risk of persecution as the country information indicated that citizens were free to organise political parties at a local level and peaceful assembly was permitted. It was not accepted that any social media posts made by the appellant would result in persecution as there was no evidence that they had come to the attention of the authorities.
The decision of the First-tier Tribunal
7. Following the hearing before the First-tier Tribunal, the judge concluded that the appellant’s account lacked credibility, was inconsistent and that his documents were unreliable. The appellant’s claimed political activities as well as his claim that he has faced adverse attention in Kyrgyzstan was therefore rejected. The judge made an alternative finding, with reference to the background country evidence, that the appellant would not be at risk of ill-treatment Kyrgyzstan even if he had been politically active as claimed.
The appeal to the Upper Tribunal
8. The grounds of appeal can be summarised as follows:
(a) The judge erred in the assessment that the appellant was not credible and had failed to consider his oral evidence as well as the documentary evidence adduced when reaching that finding.
(b) The judge has erred in law by failing to apply the balance sheet approach to Article 8 of the ECHR.
9. Permission to appeal was granted on ground (a) alone, with the judge granting permission making the following remarks.
Although the decision may well withstand scrutiny, I am just persuaded that the Judge may have reached findings on the basis of a mistake of fact in two respects. Firstly, in relation to the chronology of events and date of the claimed demonstration, owing to a translation error; and, secondly, in finding that “The translations have not been carried out in the United Kingdom” at [17] of the decision. These were matters relevant to the Judge’s assessment of the credibility of the appellant’s account.
In light of the fact the Judge identified significant credibility concerns which are not addressed in the grounds, it is very possible that any errors of the manner referred to at [1] above were not material to the outcome of the appeal. However, I consider the appropriate forum to properly consider the issue of materiality of any error (if established) is with the benefit of oral argument rather than at the permission stage. For this reason, I grant permission on ground (a) in respect of the appellant’s asylum claim. It will also be necessary to address the issue of materiality in the context of the country information suggesting relative freedom of political assembly and speech in Kyrgyzstan.
I refuse permission on ground (b). It is not arguable that the Judge materially erred in law by failing to adopt a balance sheet approach. There is no requirement to conduct a full balance sheet approach to the assessment of proportionality for the purposes of Article 8(2), although this may be a common and recommended approach. Having considered the documentation before the Judge including the appeal skeleton argument, the appellant did not raise any issues of exceptional and compassionate circumstances beyond the protection basis of his claim, and the grounds do not identify any factors which would weigh in the appellant’s favour in an Article 8 balancing exercise given that he was unable to satisfy the requirements of the Immigration Rules. In these circumstances the assessment of Article 8 was adequate, albeit brief.
Rule 24 response
10. The respondent filed a Rule 24 response dated 18 February 2026, in which the appeal was opposed. Essentially, the respondent submits that no error has been identified but even if the Tribunal were to find there was, it was not material given the number of unchallenged adverse credibility findings made as well as the unchallenged finding at [44] that even if the claim were credible, the appellant would not be at risk on return.
Rule 15(2A) application
11. The appellant sought to adduce further evidence pursuant to an application under rule 15(2A) dated 26 March 2026 which was enclosed in the consolidated bundle uploaded on 26 March 2026. The evidence sought to be adduced was updated certified translations by a UK-based translator and a country expert report addressing freedom of expression in Kyrgyzstan. It was asserted on behalf of the appellant that the translations were provided for reasons of procedural rigour and that the expert report did not materially change the factual position of the appellant’s claim.
12. In addition, the appellant provided a skeleton argument which was uploaded on 7 April 2026 which referred to the ground upon which permission had been granted as well as the Rule 15 (2A) application.
The error of law hearing
13. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal.
14. The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary.
15. It transpired that neither the composite bundle nor skeleton argument had been served on the respondent. Mr Jegede was afforded time to rectify the position. Similarly, the Rule 24 response had not been served on the appellant and Mr Parvar rectified this omission.
16. In relation to the Rule 15 (2A) application, I declined to admit the additional evidence in advance of determining whether there was a material error of law. Indeed, I heard no explanation as to why this evidence was not before the First-tier Tribunal from the outset.
17. At the end of the hearing, the decision was reserved.
Discussion
18. The appellant argues that the factual errors made by the First-tier Tribunal suffice to render the overall conclusions unsafe.
19. In ML (Nigeria) [ 2013] EWCA Civ 844, the following was said on the topic at [10] and [16], respectively:
A series of material factual errors can constitute an error of law. It is trite in not only the field of judicial review but also statutory appeals and appeals by way of case stated that factual errors, if they are significant to the conclusion, can constitute errors of law.
If there is any doubt as to whether or not the incorrect fact in question was material to the conclusion, that doubt is to be resolved in favour of the individual who complains of the error.
The Criminal Case Verdict
20. The first of the alleged errors identified in the grounds relates to a document described as the Criminal Case Verdict in relation to the appellant’s co-organiser of the demonstration of 27 April 2021. The judge made the following findings in relation to this document.
The Appellant initially produced a Criminal Case Verdict relating to his friend and coorganiser of the demonstration. This translation of this verdict initially stated that the demonstration took place on 15 May 2021. This was said later to have been a translation error and that the correct date of the demonstration was 27 April 2021 (see supplementary bundle). This may account for the Facebook screenshots showing 4, 5 and 6 May 2021 as at that time this would have coincided as having occurred before the demonstration 15 May 2021.
The translations have not been carried out in the United Kingdom. The translation is unreliable and little weight is attached to it.
21. It is explained in the grounds that the original translation erroneously stated that the date of the protest was 15 May 2024 rather than 15 May 2021 as the judge had stated. That mistranslation was described in the grounds as a clear error, presumably because the appellant was already in the United Kingdom by 2022. The corrected translation in the supplementary bundle before the First-tier Tribunal gives the date of the protest as 27 April 2021, which is consistent with the appellant’s account.
22. The judge’s reference to the dates of the Facebook screenshots implies that the erroneous date was more advantageous to the appellant because it fitted in with Facebook screenshots which postdating 15 May. Apart from the judge’s error regarding the incorrect translation, the judge was also incorrect as to the dates of the Facebook posts, at least two of which predate the date of the protest.
23. Furthermore, the judge was mistaken in what he said at [17] about ‘the translations’ not having been carried out in the United Kingdom. The correct translation of the Criminal Case Verdict was accompanied by a certified translation which gave the name and United Kingdom address of the firm (Afmart Translation) providing the translation. Indeed, Mr Parvar accepted that the judge erred here.
24. I accordingly, accept that the judge drew negative inferences from his mistaken findings which I find fed into his overall assessment of the credibility of the appellant’s claim.
Article 278 Criminal Procedure Code
25. The grounds suggest that the judge erred in referring to differing views as to the content of Article 278. In the decision letter, the respondent had stated that the Article in question related to illegal hunting whereas the Criminal Case Verdict indicated that this related to inciting riots. This matter was not satisfactorily addressed before the First-tier Tribunal nor during the error of law hearing. It is not a complete answer to say that the judge should have accepted the description of the crime in the Criminal Case Verdict document, to which the judge had attached little weight. I am therefore satisfied that the judge made no error in noting that the appellant, on whom the burden of proof rests, had not established the offence to which Article 278 relates.
Conflicting dates
26. At [41] of the decision the judge states that the translated letter from the appellant’s co-organiser is dated ‘25/07/2024’ but the original letter has a date of 10/07/2024. The point made in the grounds is that the judge was looking at the incorrect pair of documents in the bundle and was comparing documents which did not correspond to one another. Mr Parvar conceded that the judge had erred in this regard.
Materiality
27. It was argued on the respondent’s behalf that any errors were not material to the outcome of the appeal because the judge identified significant credibility concerns which went unaddressed in the grounds. It is right that the judge had concerns with aspects of the account put forward by the appellant.
28. I am mindful what was said at [16] of ML (Nigeria) regarding according the benefit of any doubt to the appellant.
29. Notwithstanding the submissions made on the respondent’s behalf, I am not satisfied that had the judge not erred in relation to the consideration of the appellant’s documentary evidence, that his overall credibility assessment would have been the same.
30. There is a further important issue in terms of materiality, which was raised by the respondent in the decision letter and by the judge. That issue being that the background evidence was said to show there to be no risk of persecution or ill-treatment for permitted political activity. I note that the appellant’s case is that his co-organiser and by extension himself are being sought for inciting riots, conduct which is unlikely to be permitted in any jurisdiction.
31. The background evidence before the First-tier Tribunal, which appears in the consolidated bundle, included the 2022 US State Department report which referred to ‘serious restrictions on free expression’ and ‘interference with freedom of association.’ There were also references to ‘credible reports’ of torture, harsh and life-threatening prison conditions, arbitrary arrests and serious problems with the independence of the judiciary.
32. The Human Rights Watch report 2024, which was also before the First-tier Tribunal states s that there was a decline in human rights during 2023 including an extension of the blanket ban on protests introduced in March 2022 as well as the pre-trial detention of activists, politicians and others.
33. It follows from the background country evidence adduced that the judge’s somewhat optimistic view of the country situation, expressed at [44-45] was misplaced in view of the background material adduced at the time.
34. I therefore conclude that the errors are both made out and are material to the outcome of the appeal.
35. I have considered whether any of the judge’s findings can be preserved. I conclude that it is unsafe to do so given the errors with the consideration of the appellant’s documents. I also have some concerns that other of the judge’s credibility findings which ought to have been challenged on the appellant’s behalf but were not.
36. I canvassed the views of the parties as to the venue of any remaking and Mr Jegede was of the view that the matter ought to be remitted if there were no preserved findings of fact. Mr Parvar held a neutral view. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statements.
37. I took into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case meant that the appellant was deprived of an adequate consideration of his protection appeal. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and therefore remit the appeal to the First-tier Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by a different judge.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 April 2026