Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002639

First-tier Tribunal No: PA/59680/2024
LP/07646/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8 September 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE HILLS

Between

IS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Radford, Counsel instructed by Milestone Solicitors
For the Respondent: Mr Walker, Senior Home Office Presenting Officer

Heard at Field House on 15 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, any of his witnesses or any members of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant is a male national of Indonesia, who appealed against a decision of the respondent dated 27 March 2024 to refuse his asylum claim. The basis of his claim is that he fears serious harm if returned to Indonesia, as he is a gay man.

2. The First-tier Tribunal Judge (FtTJ) dismissed the appellant’s asylum claim on 7 April 2025, as he found on the balance of probabilities that the appellant was not gay and therefore not at risk.

3. The appellant appealed that decision to the Upper Tribunal, where he relied on three grounds:

i. Ground 1 – The FtTJ failed to determine the appellant’s humanitarian protection appeal.
ii. Ground 2 – There were fundamental errors of fact in the FtTJ’s decision which undermined the fairness of the hearing.
iii. Ground 3 – The FtTJ failed to give adequate reasons for the credibility assessment and application of s.8 of the 2004 Act.

4. Miss Radford dealt with Ground 2 in her submissions first and we do so too. There are a number of obvious errors in the FtTJ’s decision, where he appeared to conflate the appellant’s case with another appeal. The FtTJ referred to the appellant as a gay woman, who was not Muslim, and said “…she could relocate to Kuala Lumpur where she would not be at risk” (at [9]). He found the appellant had nothing to fear in Malaysia and would not suffer any risk on return (at [9]). The FtTJ said at [11] that two witnesses had given evidence at the hearing, then listed the names of three witnesses, none of whom had in fact given evidence at the appellant’s hearing. He said that he had made a full record of these witnesses’ evidence and said at [12] “[I]n reaching my decision I have taken into account…all the evidence that was given at the hearing…”.

5. It is well established that in an asylum claim there is a need for the most anxious scrutiny from the decision maker, see Bugdaycay v Secretary of State for the Home Department [1987] AC 514. Miss Radford also referred to ML (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 844, where the Court of Appeal allowed an appeal on the basis that the factual errors contained within the decision were so serious that it was not possible to conclude that the judge had conducted a fair hearing.

6. This case is a clear example of where the FtTJ has failed to apply anxious scrutiny and where it is not possible to conclude that he has fairly considered the evidence relating to the appellant when reaching his decision. Mr Walker accepted that the errors were serious and that they called into question the fairness of the proceedings. He agreed that this demonstrated a lack of anxious scrutiny on the part of the FtTJ.

7. We find that the decision of the FtTJ involved an error of law, in that the FtTJ did not exercise anxious scrutiny in considering the asylum claim. The appeal is upheld. Given we have upheld the appeal on the basis of Ground 2, it is not necessary for us to make any findings in relation to Ground 1 and 3.

Disposal

8. The decision of the FtT is vitiated for the reasons above. We set aside the decision of the FtT. We have considered whether to retain the case in the Upper Tribunal or remit it to the FtT and have concluded that remittal is appropriate. We have considered whether any of the FtTJ’s findings can be preserved, however given the nature of the error of law we do not consider that possible.

Notice of Decision

The decision of the First-tier Tribunal is set aside as it involved an error of law. No findings are preserved.

Directions to the First-tier Tribunal

1. The appeal is remitted to the First-tier Tribunal (Hatton Cross);
2. The remitted appeal shall not be conducted by First-tier Tribunal Judge Zahed;
3. The anonymity direction is maintained.

N Hills

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 18 August 2025