Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003177

First-tier Tribunal No: PA/62049/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th October 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HOBBS

Between

ATT
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms. P. Young, Counsel instructed by Barnes, Harrild & Dyer
For the respondent: Mr. S. Terrell, Senior Home Office Presenting Officer

Heard at Field House on 17 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and/or any member of her family 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 and/or any member of her family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. This is an appeal by the appellant against a decision of First-tier Tribunal Judge Hawden-Beal (the “Judge”), dated 6 June 2025, in which she dismissed the appellant’s appeal against the respondent’s decision to refuse his protection claim. The appellant is a national of Ethiopia who claimed international protection due to his political opinion.
2. Permission to appeal was granted by First-tier Tribunal Judge Mulready in a decision dated 11 July 2025 as follows:
“1. The application is in time. The grounds are that the Judge erred in their approach to considering credibility, erred in considering that there were “criteria” which had to be met by the Appellant in order to establish the required risk on return, and made a speculative finding about the checking of border control records.
2. The Decision makes reference to the headnote of ROBA (CG [2022] UKUT 00001) (IAC)) and MB (CG) [2007] UKIAT 305) which sets out circumstances that “in general” will result in a risk of persecution. The Decision appears to have treated these as criteria which the Appellant was required to meet in order to establish the relevant part of his claim, which is arguably an overly strict application. The finding as to checking of border control records is not supported with reference to any evidence or case law, and so it is arguable that this is a speculative finding. The grounds therefore identify arguable errors of law material to the outcome of the appeal and so permission is granted.”
3. There was no Rule 24 response.
The hearing
4. I heard submissions from both representatives. I reserved my decision.
Error of law
5. I have carefully considered the decision. At [48] the Judge states:
“The question for me is whether it is credible that the appellant’s parents and brother were arrested by the authorities because of the appellant’s activities for the OLF, activities which he said that he and his brother conducted in secret and which did not involve them demonstrating openly against the government, voicing their opposition to it, fighting against it, being known in their locale as being members of the OLF or otherwise coming to the attention of the government in any way.”
6. It is acknowledged in the grounds that this “appears to be the key question in the appeal”. The Judge then finds at [50] that she “cannot be satisfied” that the appellant’s parents and brother were arrested because of the appellant’s activities for the OLF, with reference to the headnote to Roba which sets out those who are at risk. She states:
“But even taking into account the above case law [HK [2006] EWCA Civ 1037 and Tanveer Ahmed [2002] UKIAT 439*], I cannot be satisfied that this did all happen and the appellant’s family were taken away by the authorities because the cases of MB and ROBA are quite clear at head note 2 that OLF members and supporters and those specifically perceived by the authorities to be such members or supporters will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement and at headnote (3)Those who have a significant history, known to the authorities, of OLF membership or support, or are perceived by the authorities to have such significant history will in general be at real risk of persecution by the authorities. Headnote 4 explains that ‘Significant’ should not be read as denoting a very high level of involvement or support. Rather, it relates to suspicion being established that a person is perceived by the authorities as possessing an anti-government agenda. This is a fact sensitive assessment.’”
7. The Judge then states at [51]:
“The appellant meets none of these criteria. His own evidence is that neither he nor his brother were suspected of or perceived to have been involved in the OLF and nor have they ever come to the attention of the authorities with an anti-government agenda such that the authorities would have cause to arrest them. His evidence is also quite clear that they were not even known locally as being involved with the OLF.”
8. The Judge has not set out paragraph (1) of the headnote which states:
“1) MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 00030 still accurately reflects the situation facing members and supporters of the OLF if returned to Ethiopia. However, in material respects, it is appropriate to clarify the existing guidance.”
9. First, I note that Roba makes clear that this is clarifying the existing “guidance”. There is no indication that this is an exhaustive checklist, nor that what follows are “criteria” which need to be met for an individual to show that they are at risk. The appellant’s claim is that he had not come to the attention of the authorities before. I accept the point made in the grounds that “Logic indicates that there will always be a first time that a individual comes to the attention of the authorities”. This is particularly relevant with reference to headnote (2) which refers to those who have already come to the attention of the authorities, but also (3) which refers to those who are known to, or perceived by, the authorities. It is clearly possible for someone to come to the attention of the authorities for the first time, which is the appellant’s case. Given that the headnote does not allow for someone coming to the attention of the authorities for the first time, it is clear that the headnote cannot be setting out strict criteria which must be met in order to show risk.
10. While I find that the Judge was entitled to consider whether someone with no profile would have come to the attention of the authorities when considering whether there was a reasonable likelihood that his account was true, there is nothing in Roba to suggest that this is the only way an individual can be at risk. These are not exhaustive criteria which must be met. The Judge states that she “cannot be satisfied” that the events took place “because” and then states that he does not meet the paragraphs from Roba as her justification for finding that his evidence is not credible. However, as I have set out above, there is nothing in Roba to suggest that these are exhaustive criteria.
11. I find that the Judge should not have stopped her consideration there. I find that she has treated paragraphs (2) and (3) of the headnote as more than guidance. I find that this is an error of law.
12. The grounds further state that the Judge made a speculative finding at [52] where she found it “highly unlikely that the authorities would have just turned up at his family home without making some basic checks”. She stated that “all they had to do was check their own border controls to see that he had left the country legitimately for the UK on a football tour and had not yet returned”.
13. Mr. Terrell submitted that this was not speculative, but a commonsense judgment that the Judge had been entitled to take. However, this finding is not made with any reference to background evidence, and I find that it is speculative.
14. I find that the Judge has erred in her consideration of the appellant’s account. In particular she has treated the guidance in Roba as criteria which must be met to show risk. I find that these are material errors.
15. In considering whether this appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal to be remade I have taken into account the case of Begum [2023] UKUT 46 (IAC).  At headnote (1) and (2) it states:  
“(1)    The effect of Part 3 of the Practice Direction and paragraph 7 of the Practice Statement is that where, following the grant of permission to appeal, the Upper Tribunal concludes that there has been an error of law then the general principle is that the case will be retained within the Upper Tribunal for the remaking of the decision.
(2)    The exceptions to this general principle set out in paragraph 7(2)(a) and (b) requires the careful consideration of the nature of the error of law and in particular whether the party has been deprived of a fair hearing or other opportunity for their case to be put, or whether the nature and extent of any necessary fact finding, requires the matter to be remitted to the First-tier Tribunal.”    
16. I have carefully considered the exceptions in 7(2)(a) and 7(2)(b).  Given that the Judge erred in her assessment of the credibility of the appellant’s account, the appellant has effectively been denied a fair hearing.  It is therefore appropriate to remit this appeal to be reheard in the First-tier Tribunal.     
Notice of Decision    
17. The decision of the First-tier Tribunal involves the making of material errors of law and I set the decision aside.  No findings are preserved. 
18. The appeal is remitted to the First-tier Tribunal to be heard de novo.
19. The appeal is not to be listed before Judge Hawden-Beal.  
20. The appeal is to be heard in the Virtual Region.  

Kate Hobbs
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 October 2025