Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002212

First-tier Tribunal No: PA/03326/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30 October 2025

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

B W
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr M. Moksud, instructed by IIAS Solicitors
For the Respondent: Mrs A. Nolan, Senior Home Office Presenting Officer

Heard at Field House on 16 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity because the case involves a protection claim. 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 appealed the respondent’s decision dated 06 August 2024 to refuse a protection and human rights claim.

2. First-tier Tribunal Judge Holbrook (‘the judge’) dismissed the appeal in a decision sent on 11 April 2025. The judge considered the evidence given by the appellant, the supporting documents, and the background evidence relating to the treatment of political activists in Nepal. The judge accepted that the appellant was a member of the National Democratic Party in Nepal and participated in a number of political activities. However, the judge went on to find that the appellant was unable to give a detailed and consistent account of events. The documents produced to support her claim were inconsistent with her claimed account and unreliable. In any event, the background evidence did not show that political activists, even leaders of opposition parties, were likely to be at risk of serious harm. For these reasons, the judge concluded that the appellant would not have a well-founded fear of persecution for reasons of her political opinion if she returned to Nepal.

3. The appellant applied for permission to appeal the First-tier Tribunal decision to the Upper Tribunal. The grounds made a series of points under each heading. The First-tier Tribunal judge who considered the application granted permission in relation to some grounds but refused permission in relation to other grounds. Permission was granted in relation to the following points:

(i) The appellant was not given a fair opportunity to clarify apparent inconsistencies in the dates as to when she received threats, either in 2021 or 2022 (ground 1.1).

(ii) The First-tier Tribunal erred in conflating the standards of proof by appearing to apply the balance of probabilities to the assessment of future risk (ground 1.4 and 4.1-4.3).

(iii) The First-tier Tribunal erred in failing to consider the risk to the appellant from non-state political agents who were not in government (ground 3.1-3.3).

(iv) The First-tier Tribunal erred in considering the possibility of internal relocation as part of the assessment of future risk (ground 3.5).

4. I have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but I will refer to any relevant arguments in the decision.

5. I bear in mind that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of a specialist tribunal are best placed to make factual findings: see HA (Iraq) v SSHD [2022] UKSC 22. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19.

Decision and reasons

Ground 1 – procedural unfairness

6. The first ground asserts that there was unfairness because the judge failed to ask the appellant to clarify vagueness and various inconsistencies in her account. In assessing the credibility of the account it was open to the judge to take into account the fact that the respondent had rejected her credibility because the account was vague and confused. The appellant was on notice that the account was not thought to contain sufficient clarity or detail. The appellant’s witness statement was equally vague. She had a fair opportunity to provide a more detailed account before the hearing but failed to do so. Nor does the first ground identify what the appellant would have said to clarify matters if she had been asked about these matters at the hearing. I conclude that it was open to the judge to make findings about the general lack of clarity and confusion in relation to the appellant’s account. Those findings were within a range of reasonable responses to the evidence and do not disclose an error of law.

Ground 2 – standard of proof

7. The second ground argued that the judge applied the wrong standard of proof. Section 32 of The Nationality and Asylum Act 2022 (‘NABA 2022’) is not drafted in a particularly clear way and has complicated the assessment of what was previously a single standard of proof in relation to the factual and risk assessment of a protection claim. However, it is clear that the judge had directed herself to the decision in JCK (s.32 NABA 2022)(Botswana) [2024] UKUT 100 (IAC), which provided guidance as to how to approach the assessment [15]-[16].

8. In doing so the judge followed the structure suggested in JCK. The judge asked herself on the balance of probabilities whether, taking the claim at its highest, there is a Convention reason (question 1 – Convention reason). The judge went on to say that she must determine on the balance of probabilities whether the appellant feared persecution for that Convention reason (question 2 – subjective fear) [15]. The judge went on to make clear that she would then need to determine whether it was reasonably likely that the appellant would be persecuted for that Convention reason, whether there would be sufficient protection available, and whether the appellant could relocate internally (questions 3-5 – risk on return).

9. The application of these principles is more difficult in practice, but there is nothing in the judge’s findings to suggest that she did not then go on to consider the correct standards of proof in relation to the relevant elements of section 32 NABA 2022. She found on the balance of probabilities that the appellant was a member of the National Democratic Party and had participated in activities [20]. This was likely to establish the Convention reason of ‘political opinion’. The question of whether the appellant had a subjective fear of return for that reason was tied up with the overall credibility of her account of past events. If her account was not found to be sufficiently credible or reliable, then it was unlikely that she would have a genuine subjective fear for a Convention reason. It is in this context that the judge’s findings at [26] of the decision must be considered:

’26. Overall, I do not find that it is more likely than not that the Appellant has a well-founded fear of persecution in Nepal. Her account of the threats is confusing and vague and she did not take the opportunity in her appeal statement to rectify this lack of detail. Potentially corroborating documentary evidence (the 2 letters) is independently problematic and there is no country evidence that positively assists her case in terms of reports of similar cases or even a general indication that RRP members could be targeted as the Appellant describes. I find the Appellant has not provide this element of her claim to the balance of probabilities. I therefore also cannot find she is reasonable likely to be at risk on return and in general the country evidence indicates that is unlikely, especially away from her home area.’

10. The fact that the judge used the term ‘well-founded fear of persecution’ is not controversial. It is an essential element of Article 1(A)(2) of the Refugee Convention. Section 32 NABA 2022 is headed ‘well-founded fear’ and is said to define for the purpose of Article 1(A)(2) whether an asylum seeker’s fear of persecution is well-founded.

11. Whether a person’s fear of persecution is well-founded could include an assessment of the credibility of the claim to fear persecution due to past events. If a person is not found to be credible, or their stated fear is not genuine, then they could not be said to have a well-founded fear of persecution. This might go the first and second questions identified in JCK, which the statute requires to be considered on the balance of probabilities.

12. Even if the claim is credible, and a person does have a genuine subjective fear of return, an assessment of the evidence relating to risk on return might disclose that there is in fact no well-founded fear of persecution or serious harm. This might go to questions 3-5 identified in JCK, which is an evaluative assessment that the statute requires to be considered on the lower standard of poof of a reasonable degree of likelihood.

13. It is clear from the judge’s finding that it was not more likely than not that the appellant had a well-founded fear of persecution in Nepal was made with reference to the first limb of the test contained in section 32 NABA 2022. Having found that the appellant had failed to give a sufficient credible or detailed account of events, it was open to the judge to find that there was insufficient reliable evidence, either in relation to the appellant’s account of past events, or in the background evidence relating to the treatment of political opponents, to show that it was reasonably likely that the appellant would be at risk on return. For these reasons, the second ground does not disclose an error of law.

Ground 3 – risk from non-state political actors

14. Nothing in the third ground discloses any error of law when the judge found that the evidence produced in support of claimed threats was unreliable and there was nothing in the background evidence to show that political opponents were subject to persecution in Nepal [21]-[23]. The appellant’s assertion that she also feared non-state political actors from other opposition parties was as vague as the rest of her account. In her statement, she referred to a member of her party being killed in 2018, but no detail was given. Nor does the third ground particularise any other evidence, either given by the appellant or in the background evidence, to indicate that there was any arguable risk on this basis.

Ground 4 – internal relocation

15. Having found that the appellant’s account was vague and inconsistent, and that the evidence did not show a real risk to political opponents or supporters of the monarchy in any event, it was open to the judge to find that the appellant would not be at risk in her home area, let alone in another area of Nepal. The fourth ground argues that it had been agreed that internal relocation would not be available if the appellant’s claim to fear persecution from the state was to be found credible, but it was not found credible.

16. For the reasons given above, I conclude that the First-tier Tribunal decision did not involve the making of an error on a point of law. The decision shall stand.

Notice of Decision

The First-tier Tribunal decision does not involve the making of an error on a point of law

The decision shall stand

M. Canavan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 October 2025