Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002031

First-tier Tribunal No: PA/51473/2022
IA/03962/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

DC
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S. Coburn, instructed by IAS
For the Respondent: Ms N. Kerr, Senior Home Office Presenting Officer

Heard at Field House on 9 October 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. I have made an order to anonymise the Appellant. An anonymity order was made in the First-Tier Tribunal. Having considered Guidance note 2022 No 2: Anonymity Orders and Hearings in Private, it is my view that there is a need to protect the identity of the Appellant. This in the light of the fact that this is an asylum claim.
2. The Appellant is a citizen of El Salvador. He entered the UK on 27 January 2020.
3. The issue to decide is whether the First-tier Tribunal (‘FtT’) Judge (‘the Judge’) Young-Harry erred in law, in a decision dated 16 December 2024, when dismissing the Appellant’s appeal against the decision of the Respondent, dated 28 March 2022, to refuse his claim on protection and human rights grounds.
Background
4. The Appellant entered the UK and claimed asylum on 27 January 2020. His screening interview was conducted on the same day. He provided a statement in support on his claim on 22 October 2020. His substantive asylum interview was conducted on 8 February 2022.
5. His claim was refused by the Respondent in a decision dated 28 March 2022. The decision accepted the Appellant’s identity and nationality. It also accepted that he was stopped by a gang when travelling on a bus. He was removed from the bus for ID documents to be checked, as the bus was from an MS13 gang area travelling through a Barrio 18 gang area. The decision did not accept that he reported the incident to the police or that Barrio 18 had any interest in him.
6. He appealed the decision. His appeal came before the FtT on 29 November 2024. In a decision dated 16 December 2024, his appeal was dismissed by the FtT.
Grounds of Appeal and Grant of Permission
7. The Appellant appealed the decision of the FtT on 31 December 2024. I summarise the grounds of appeal advanced as follows:

1. The Judge failed to have regard to material evidence and matters in considering the evidence before her on the Appellant’s identity document being checked or taken.
2. The FtT failed to apply anxious scrutiny / made a mistake of fact on a material matter, namely the contents of a police report and the consistency of the Appellant’s evidence against this report.
3. The FtT failed to provide adequate reasons for finding that the times recorded on the police report were inconsistent with the Appellant’s account.
4. The judge erred in considering whether there was a convention reason under the Refugee Convention.
5. The Judge erred in finding that the Appellant could seek state protection or internally relocate, these being issues which were conceded by the Respondent.
8. The Appellant was granted permission to appeal by the FtT in a decision dated 14 March 2025. The relevant parts of the decision granting permission read as follows:

“2. The grounds disclose arguable errors of law.
3. In relation to ground 1-3 it is arguable that the Judge has not reconciled their findings of fact with the evidence/concessions regarding the appellant’s identity document. Additionally in ground one and two it is arguable that the Judge has not reconciled the concessions given in respect of sufficiency of protection and internal relocation and their findings about convention reason in relation to EMAP.
4. Permission is granted.”
Submissions
9. The matter came before me in an error of law hearing on 9 October 2025. I heard detailed submissions from both representatives.
10. The documents before myself and the parties included a composite bundle of 282 pages. This included the documents which were placed before the FtT.
11. During the hearing (as a result of the grounds of appeal advanced), an issue arose as to whether the Respondent had made concessions on the issues of state protection and relocation. Ms Kerr was unclear as to what had been said in this regard at the hearing in the FtT. Unfortunately, the Respondent had not served a Rule 24 response. I issued directions at the hearing to allow both parties to set out their position in this regard. In response to the directions, I was provided with (a) a witness statement from Mr Swaby, the Presenting Officer for the Home Office at the FtT hearing, dated 13 October 2025 (b) a witness statement from Miriam Ballard, the legal representative for the Appellant at the FtT hearing, dated 19 October 2025 and (c) a hearing note taken by the Appellant’s representative at the FtT hearing.
Findings and Reasons
12. I consider the grounds advanced below in turn.
(1) Identity Document
13. The Judge finds at para. 17(i) that the Appellant said during the hearing that the gang took his identity card and as such they would be able to identify and locate him on return. The Judge notes that in his interview he produced and showed his identity card, and in his witness statement he also says he has his identity card. She states that the police report mentions his mobile phone was taken but nothing else. It is found that “his claim that his identity card was taken is a recent fabrication, added to bolster his claim and create a reason why he would face a risk on return.”
14. The grounds state that the Judge has failed to consider the Appellant’s evidence in his screening interview in respect of his identity card being taken and also the concessions made in the Respondent’s decision letter on this issue.
15. I have considered the Appellant’s screening interview. At question 4.1 he is recorded as having said “22/11/2019 - The gang threatened me. They’ve stolen my I.D.” It follows from this that his oral evidence was not the first time he said that his ID card was taken by the gang. Indeed, he said this at the outset of his claim on arrival. The Judge appears not to have considered this evidence. It was wrong, in these circumstances, for the Judge to state that this evidence was a recent fabrication.
16. I also note that the Respondent’s decision letter said at para.27 “your accounts of the bus being stopped and gang members taking you off the bus to check ID documents can be considered credible as you have stated the bus travelled from an MS-13 area through a Barrio 18 area” (emphasis added). Para. 45 of the decision says: “Given the information above and external information sourced, it is accepted that a bus you were traveling in may have been stopped by Barrio 18 and you were asked to show your identity documents” (emphasis added).
17. I have taken into account that the Appellant’s interview record does say that he produced an identity card. I also have regard to the fact that in his witness statement, dated 22 October 2020, he says he has his national ID with him (para. 8). It is not clear to me whether this is the same identity card as the one which he says was taken/checked or there was more than one identity document being referred to. I note that in the same witness statement dated 22 October 2020, he states as follows:

• “The men started to ask for our documentation and belongings” (para 11)
• “I feared that they would use the information which they saw on my ID as a way to find me as my address is written on there. I would see members of their gang around my area from my window and feared they had been sent to kill me” (para.15)
• “My father… told me that anywhere I go they would find me and since they had my personal information, they could use this to locate me easily and attack me” (para. 18)
18. I also note that in his witness statement dated 18 October 2024 he says the same as he did in his earlier statement and he plainly states here that his ID was taken by the gang (see for example paras. 10, 17, 20, 31).
19. It is clear that the totality of the Appellant’s evidence and the Respondent’s concession on this issue of the identity document have not been taken into account by the FtT. Further, that the findings made do not adequately address all of the evidence on this issue. As per R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982 at 9 (ii) and (iii) (‘R (Iran) & Ors’), this grounds makes out a material error.
(2) Police Report
20. At paragraph 17(ii) of the decision the Judge states that the Appellant “also claims he was dragged into the estate by the local gang.” The Judge finds at paragraph 17(iii) that the police report produced by the Appellant says that “he was dragged into the local estate” and it is said “this is not consistent with his witness statement.” The Judge attaches no weight to the report given this and other inconsistencies. As a result, she does not accept that he made a police report.
21. The grounds state that the Judge has failed to apply anxious scrutiny and properly consider the detail in the evidence, resulting in an error of fact. It is said that the Judge does not provide a source for the finding at 17(ii) that the Appellant claimed to have been dragged into the estate. The grounds submit that the Judge has erred in considering the police report, as this in facts says the gang intended to drag him into the local estate.
22. Having considered the interview records and witness statements, I cannot see that the Appellant stated in these that he was actually dragged into the estate.
23. The relevant part of the police report reads as follows:

“They also forcibly dragged him with threats of violence, pointing their guns at him, intending to take him to the Villa de Jesús community to murder him. However, he managed to escape.” (emphasis added)
24. I note that the police report is here consistent with the Appellant’s evidence recorded in his substantive interview at question 92 where he said, “they tried to drag us inside the neighbourhood of Villa de Jesus” (emphasis added).
25. The Judge does not explain how this evidence is inconsistent with his witness statement. I note that in his first witness statement, dated 22 October 2020, he does not mention being dragged. In his most recent statement of 18 October 2024, he addresses the reasons for this at para. 26. The Judge does not seem to consider this explanation or explain why she does not accept this evidence.
26. It is difficult to understand this part of the Judge’s reasoning. On an analysis of the police report and interview record, the evidence on this issue was consistent. As per R (Iran) & Ors at 9(vii), failing to give adequate reasons for findings and/or making a mistake as to a material fact which could have been established by evidence is a material error.
(3) Inconsistent Times on Police Report
27. At paragraph 17(iv) the Judge states “The time recorded on the police report and the time when the incident occurred, and the sequence of events as described by the appellant are not consistent.”
28. I have considered the times on the police report. The date and time of the incident is recorded as 10.30am on 22 November 2019. The date and time of the notice is recorded at 14.25pm on 22 November 2019.
29. It is difficult to understand what is inconsistent about these times and this is not explained by the Judge. It is also difficult to understand what is inconsistent about these times and the Appellant’s sequence of events. The Judge does not explain this adequately or at all. As per R (Iran) & Ors at 9(ii), a failure to give reasons or adequate reasons on material matters is an error of law.
30. I have considered Ms Kerr’s submission that other adverse credibility findings were made. Despite this, I consider the above grounds are material errors. In coming to this conclusion, I remind myself that credibility is a holistic assessment and I have found several material errors in the assessment of the Appellant’s credibility.
(4) Convention Reason
31. At paras. 13-15 of the decision the Judge found that the Appellant’s claim did not engage the Refugee Convention on the basis of the political or imputed political opinion as he had failed to show he had an opinion, thought or belief relating to the gangs. She comes to this conclusion on the basis that it appears that the gang was stopping the bus passing their territory to steal from passengers.
32. The Appellant argued that he was at risk owing to his imputed political opinion by reporting the gang to the police / ‘crossing’ the gang. In saying this, he relied upon EMAP (Gang violence – Convention Reason) El Salvador CG [2022] UKUT 00335 (IAC) (para.4 skeleton argument (‘ASA’)). He says the Judge has erred in failing to consider this.
33. I accept the submission that this ground/the materiality of this error depends on the grounds, which I have addressed above, being made out. I have found that they are.
34. It is clear from the decision that the Judge did not consider the Appellant’s submissions as to why this claim engaged the Refugee Convention. I note that the country guidance on this issue, EMAP (Gang violence – Convention Reason) El Salvador CG, held as follows (emphasis added):

“(i) The major gangs of El Salvador are agents of persecution.
(ii) Individuals who hold an opinion, thought or belief relating to the gangs, their policies or methods hold a political opinion about them.
(iii) Whether such an individual faces persecution for reasons of that political opinion will always be a question of fact. In the context of El Salvador it is an enquiry that should be informed by the following:
(a) The major gangs of El Salvador must now be regarded as political actors;
(b) Their criminal and political activities heavily overlap;
(c) The less immediately financial in nature the action, the more likely it is to be for reasons of the victim’s perceived opposition to the gangs.
(iv) As the law stands at present, so taking the disjunctive approach, those fearing gang violence in El Salvador may be considered to be members of a particular social group where they can demonstrate that they share an innate characteristic, a common background that cannot be changed, or a characteristic so fundamental to their identity or conscience that they should not be forced to renounce it.
122. In between those two poles is the area of overlap where the criminal and the political motivations of the gangs are harder to separate. It is true that punishment for resistance will often be inflicted in pursuit of criminal, economic objectives, but in the context of El Salvador that is not all it is. The subject of extortion who takes a stand and refuses to pay, the victim of violence who turns to the state for assistance, the youth who resists the pressure to join a gang are all in our view likely to be able to establish that an effective cause of the persecution they fear is the opinion or belief that they hold about the gang. The less immediately financial in nature the point of the adverse attention, the more likely it is going to fall towards the political end of the spectrum.
123. Individuals who resist the gangs in El Salvador will be able to establish that they are members of a particular social group if they can demonstrate that they share an innate characteristic, a common background that cannot be changed or that they share a characteristic or belief that is so fundamental to identity or conscience that they should not be forced to renounce it. We are satisfied that this could include women, LBGT individuals, former gang members and those who for reasons of conscience take a stand against the gangs.
124. Applying Fornah we do not regard it as necessary to make findings on whether any of these groups have a distinct identity in El Salvador, although we note that many of them do: women, LGBT individuals, former gang members would all meet the ‘social perception’ test should it be applied. We are also satisfied that those who make a public or visible stand against the gangs would qualify since they are likely to be perceived as different by the surrounding society. Those who privately, discreetly oppose the gangs are not, and taking the conjunctive approach their claims would fail.”
35. A failure to consider material submissions or apply country guidance is a material error of law; see DK (Serbia) & Ors v Secretary of State for the Home Department [2006] EWCA Civ 1747 and R (Iran) & Ors at 9(v).
(5) State Protection and Relocation
36. The decision of the Judge states at para. 7(d) that the issues of state protection and internal relocation were in dispute between the parties. At para. 19 of the decision the Judge states “it is open to the appellant to return to a different part of El Salvador if he remains concerned. I note also he will have the protection of his father as a police officer on return.” At para. 20 the Judge again says “there is an alternate flight alternative.”
37. I again accept that this ground/the materiality of this error depends on the grounds, which I have addressed above in respect of credibility, being made out. I have found that they are.
38. I have a witness statement dated 13 October 2025 from the Presenting Officer before the FtT, Mr Swaby. He states he did not argue state protection or relocation before the FtT and that he only pursued credibility as an issue.
39. I also have a witness statement dated 10 October 2025, from Miriam Ballard, the legal representative that represented the Appellant in the FtT hearing. She states that her own record of proceedings, which she has produced, confirms that the Respondent’s position was that state protection and relocation were not in issue in this appeal. I have considered Ms Ballard’s record of proceedings and these show that state protection and relocation was conceded by the Respondent. It was also accepted that if credibility was accepted that the claim would fall within the Refugee Convention.
40. It is a material error of law to go behind a concession and unfair to the parties to do so without bringing this to their attention; see Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC) at headnote 7, and R (Iran) & at 9(vi).
Notice of Decision
41. For the aforementioned reasons, I find that there are material errors of law in this decision. The decision is set aside.
42. The parties agreed that if a material error of law was found in respect of credibility, the matter should be remitted to the FtT. I agree that this is correct considering 7.2 of the Practice Statement of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal. I remit this matter to the FtT, to be heard before any Judge aside from Judge Young-Harry.

P. Solanki

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 January 2026