Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002494

First-tier Tribunal Nos: PA/56771/2023
LP/02429/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 September 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD
DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

Between

AS
ANONYMITY ORDER CONTINUED
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Fisher, Counsel, instructed by Shawstones Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 4 August 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. The parties may apply on notice to vary this order.

DECISION AND REASONS
1. This is our oral decision which was delivered at the hearing today.
Background
2. The Appellant, a national of Ethiopia, appeals against the decision of First-tier Tribunal Judge Beg dated 3 April 2025 who had dismissed his appeal against the Respondent’s decision to refuse his protection and human rights claim.
3. Permission to appeal was granted by First-tier Tribunal Judge Mulready by way of a decision dated 5 June 2025.
4. The background to the case in relation to the protection claim is set out within the Judge’s decision at paragraphs 2 and 3:
“2. The grounds assert the Judge failed to give adequate reasons, failed to apply HJ (Iran), failed to take account of material matters, took account of immaterial matters and erred in going behind the Respondent’s acceptance that the medical expert had seen the Appellant’s GP records.
3. The Judge did not find the Appellant’s UK based political activities in bad faith and so was required to consider whether he would continue those on return to Ethiopia, in line with the HJ (Iran) principle. The Respondent’s review accepted the medical expert had seen the GP records. The Decision records the opposite. The Appellant’s claim is one of persecution by the state because of his political activities, but the Judge found the state would provide him with a sufficiency of protection. The grounds therefore all identify arguable errors of law material to the outcome of the appeal, and so permission is granted”.
The Appellant’s Grounds of Appeal
5. The Appellant had relied on five grounds of appeal. Those grounds of appeal have been drafted by Mr Craig Holmes of Counsel and are dated 16 April 2025.
6. The grounds contend, firstly that there was a failure to give adequate reasons/to take account of material matters. In Ground 1 the Appellant asserts that the Judge failed to take into consideration material evidence from various sources including an expert report and a letter from the chairman of NAMA. Ground 2 alleges that the Judge had failed to apply binding Supreme Court authority. Ground 3 alleges that there was a failure to take account of material matters or to give adequate reasons. In particular there is reference in this ground to a psychiatric and scarring report. Ground 4 refers to procedural maters as to whether or not the expert had had sight of General Practitioner medical notes before completing her report. Finally ground 5 contends that the Judge had taken account of immaterial matters/that there was irrationality in the overall assessment relating to the case.
The Hearing Before Us
7. Ms Fisher on behalf of the Appellant amplified the grounds of appeal which had been provided previously and she made further submissions which we will refer to when we give our consideration of this case. We also heard from Ms Isherwood on behalf of the Respondent. She said that there was no Rule 24 reply from the Respondent. Ms Isherwood had detailed why it was contended there was no material error of law in relation to the Judge’s decision and she said that the Judge had given weight to the various aspects of the evidence.
8. We turn to the grounds of appeal and we take them out of turn rather than in the chronological way presented to us.
Consideration and Analysis of the Grounds of Appeal
9. We consider Ground 2 first. This alleges that the Judge had failed to apply binding authority, and in particular here there is reference to the Supreme Court’s decision in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596. Paragraph 9 of the grounds states:
“The Appellant’s (ongoing) genuine political activism, and his past political activism and opposition to the government in Ethiopia are acknowledged facts. In circumstances where Ethiopia is acknowledged as operating an oppressive atmosphere to quell political opposition and dissent, see Roba (OLF - MB confirmed) Ethiopia (CG) [2022] UKUT 1 (IAC) generally, and at §39) and in circumstances where the Appellant is acknowledged has having continued to act upon and express his political views over an extended period, it was incumbent upon the Judge to address the application of the HJ (Iran) test. How would the Appellant act upon return to Ethiopia? If he expressed his views openly, how would the authorities react to him?”
10. Ms Fisher submitted that when one looked at the Judge’s decision that there was a failure to refer and/or to apply HJ (Iran).
11. Ms Isherwood said in summary that there was an important distinction to be made. Whilst she accepted that HJ (Iran) was not referred to by the Judge, she submitted it did not mean that the Judge had failed to apply the correct principles. She referred us to paragraph 33 of the Judge’s decision. She said that the Judge had noted, for example, that, at best, there were low level sur place activities undertaken by the Appellant. She also referred to paragraph 35 where the Judge had referred to the background material and evidence. Ms Isherwood submitted that the Judge had applied the correct approach to Country Guidance with consideration to the Appellant’s circumstances. Ms Isherwood said that the Judge had reached findings which were open to her on the material which had been presented.
12. It is necessary therefore to look to see what the Judge had said in respect of this aspect. We immediately acknowledge that Ms Isherwood has fairly presented her arguments. We note that there was no reference by the Judge to the Supreme Court’s decision in HJ (Iran). It is trite that Judges do not have to refer to all authorities and the specialism of the First-tier Tribunal must be respected. We therefore look to see whether the Judge’s decision applies the correct principles, even though the caselaw was not cited.
13. We conclude that the Appellant’s grounds correctly identify that not only is there no reference to HJ (Iran) within the Judge’s decision, there is no application of the principles derived from this important case either. Instead, the Judge had referred at paragraphs 27 and 28 to the Court of Appeal’s decision in YB (Eritrea) [2008] EWCA Civ 360 and in particular to the judgment of Sedley LJ.
14. Ms Isherwood is correct that the Judge did refer at paragraph 33 to some of the factual matrix. For example, the Judge considered whether or not evidence was provided of WhatsApp messages, but we have been unable to discern from the Judge’s decision whether the actual principles of HJ (Iran) were considered and then applied. This ground therefore must succeed.
15. We turn then to one of the other grounds of appeal. We take ground 3 out of turn, which relates to the expert evidence. The Judge had undertaken an assessment of the expert evidence. What the Judge concluded, in effect, was that that there had been a lack of scrutiny by the expert because the expert had not had sight of other medical reports, particularly the Appellant’s GP records.
16. At paragraph 45, the Judge referred to the case of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC) and said as follows within her decision,
“The Upper Tribunal held that accordingly, as a general matter, GP records are likely to be regarded by the Tribunal as directly relevant to the assessment of the individual’s mental health and should be engaged with by the expert in their report”,
and then at paragraph 46 the Judge said,
“Dr Olowookere states at paragraph 5.1 of her report that she has seen the appellant’s appeal statement and his medical records. She does not state what those medical records are or whether she is referring to his GP notes. At paragraph 10 she states that there is no medical history ... I find that there is no credible evidence that Dr Olowookere had sight of the appellant’s GP notes before completing her report. For all the reasons I give above I attach limited weight to her report.”.
17. On behalf of the Appellant, Ms Fisher submitted that there was a clear error on the part of the Judge because the medical records, including the GP’s notes, clearly were taken into account by the expert when preparing the expert report because there is specific reference to them. Ms Fisher also took us to the GP’s notes themselves which appear at pages 162 to 163 of the bundle.
18. We conclude that, although Ms Isherwood submitted on behalf of the Respondent that little can turn on the GP notes (being 2 pages of various entries), it is clear from the Judge’s decision that the Judge afforded less weight or even no weight to the expert report. That was an error by the Judge. Had the Judge afforded the correct weight to the expert evidence, she would likely have come to a different conclusion on the evidence.
19. Similarly, we conclude that the Judge was also plainly wrong to state that the expert report lacked expertise to provide views on scarring. Here the Appellant’s complaint in the grounds of appeal and during the oral submissions before us has been that the Judge simply got this wrong. We agree. That is because the expert in her report in the “qualifications section” of the report states clearly at page 45 that she has the necessary expertise on “assessment of scarring”.
20. We ask ourselves whether or not the Judge’s error is material to the outcome. We conclude that it is. The erroneous consideration of the expert evidence fundamentally impacted upon the decision reached by the Judge. Had the Judge used the expert evidence as a tool in assessing credibility, namely by applying the well-known case of the Mibanga v SSHD [2005] EWCA Civ 367, then she would likely have come to a different conclusion. In any event, as we have identified in the previous ground of appeal and independently of the expert evidence ground, the Judge did not apply the HJ (Iran) principle in relation to the risk to this Appellant in terms of his refugee sur place activities.
21. It is therefore not necessary to consider the remaining grounds of appeal.
Conclusion
22. We remind ourselves that there has to be appropriate judicial restraint in relation to the assessment of an appeal from the specialist First-tier Tribunal. We note too that the authorities date back to Baroness Hale’s clear judgment in AH Sudan v Secretary of State for the Home Department [2007] UKHL 49; ]2009] 1 AC 678 in respect of that expertise.
23. In the Court of Appeal’s recent decision in MH (Bangladesh) v the Secretary of State for the Home Department [2025] EWCA Civ 688 (9 June 2025) Arnold LJ, with whom Singh and King LJJ agreed, said as follows:
“The role of an appellate court or tribunal
29. There have been many recent authorities in both the Supreme Court and this Court on the need for appellate courts and tribunals to be cautious before interfering with findings of fact and evaluative assessments by lower courts and tribunals, and in particular specialist tribunals such as the FTT. For present purposes it is sufficient to cite Lord Hamblen’s summary in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 at [72]:
‘It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal…”
24. We give great weight to the fact that it was the Judge who heard the evidence and thereby had the benefit of seeing and hearing from the Appellant and also from the Appellant’s advocate at the hearing. However, despite having due regard for those matters, in this case the errors of law to which we have referred are manifest. In the circumstances, we conclude that the decision of the Judge has to be set aside.
25. We heard from the parties in respect of disposal. Ms Fisher had submitted that the matter ought to be remitted to the First-tier Tribunal and for there to be a rehearing on all matters. Ms Isherwood said that she would have been minded to agree with that save for the submission which was made in relation to the Article 8 human rights aspects in effect and that thereby it might be possible in the circumstances for the case to remain here at the Upper Tribunal.
26. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), we carefully consider 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 Statement. We also take 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. We further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and we therefore remit the appeal to the First-tier Tribunal with no retained findings. The protection claim and the human rights claim are intertwined and it is not possible to separate them as was suggested as a disposal by Ms Isherwood.

Notice of Decision
The decision of the First-tier Tribunal contains a material error of law and it is set aside.
The matter is remitted to the First-tier Tribunal for a hearing afresh on all matters, before a different judge.
None of the current findings shall stand.
The anonymity direction previously made shall continue because the matter relates to a protection claim.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 August 2025