Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003328

First-tier Tribunal No: HU/51889/2024
LH/01004/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26th of September 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

Between

A S
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bowmeker
For the Respondent: Ms Kerr

Heard at Field House on 23 September 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
Introduction
1. The appellant is a national of Albania who appeals with permission against the decision of First-tier Tribunal Judge Mensah of 26 May 2025. The parties agree that the determination of FTTJ Mensah contains a material error of law such that the appeal should be allowed and the matter remitted to the First-tier Tribunal for a new hearing with no findings preserved. I set out the reasons below.
2. The appellant claimed asylum on 9 September 2022 and the respondent refused that application on 15 February 2024. The appellant brought an appeal and it was this appeal that came before the FTT.
3. There were two aspects to the appellant’s protection claim. He feared ill-treatment, he said, firstly on the basis that he was at risk as a result of what the respondent describes in the refusal letter as “conflict that [his] father had with his enemies”, who were among other things gun smugglers; and secondly on the basis of a risk arising from the “loan sharks” he claimed to have borrowed money from to flee Albania. Importantly, while the respondent did not accept the risk arising from the loan sharks, the respondent did accept in terms the appellant’s factual account regarding his “father’s enemies”, the gun smugglers. The appeal was dismissed by the FTT in a determination of 26 May 2025.
4. Permission to appeal was granted by FTTJ Lawrence on Ground 1 only, in respect of the treatment of the protection claim. Permission was refused in respect of Grounds 2 and 3 which dealt with the Article 8 ECHR claim arising out of the appellant’s relationship with his wife.
Grounds of appeal
5. The sole ground before me alleges that the FTTJ erred in law, as FTTJ Lawrence put it granting permission, in departing from the respondent’s concession that the appellant was involved in the conflict his father had with his enemies.
Decision and reasons
6. Ms Kerr very properly conceded that Ground 1 was made out and in my view she was clearly right to do so.
7. In Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC) the Tribunal held as follows:
“35. Judges, unless in exceptional circumstances, do not look behind factual concessions. Such exceptional circumstances may arise where the concession is partial or unclear, and evidence develops in such a way that a judge considers that the extent and correctness of the concession must be revisited. If so, she must draw that immediately to [the] attention of representatives so that they have an opportunity to ask such further questions, lead such further evidence and make such further submissions as required. An adjournment may become necessary.”
8. Appellants prepare their cases on the basis of what they understand the position of the respondent to be. Where that position includes a concession on a factual issue, they are unlikely to adduce evidence in respect of that issue, and may present the case in an entirely different manner than they would were that fact in issue. Where a concession is then withdrawn, or it becomes clear to the tribunal hearing the case that it is unsustainable, it is likely to be necessary that the appellant be given notice and an opportunity to take stock. The appellant may well need to furnish new evidence and may require an adjournment to do so, as established in Kalidas.
9. The respondent’s decision letter includes the following at [9]:
“Material facts I accept

9. I am satisfied that:
• You were involved in the conflict that your father had with his enemies.”
10. That concession was expressly relied on by the appellant in his skeleton argument for the hearing at e.g. [7]. Understandably, the appellant does not make submissions as to why that issue should be resolved in his favour.
11. The respondent’s review was produced on 25 October 2024. In that document the concession was not withdrawn. The review states:
“The schedule of issues and counter schedule below are clear on what matters are now accepted. Any other aspect of the RFRL and relevant sections of the Immigration Rules remain a concern and are expected to be addressed at the appeal hearing.”
12. The respondent does not therein list as an issue in the case the credibility of the appellant’s account of what happened with his father’s enemies, the gun smugglers. This is wholly consistent with the earlier concession.
13. The appellant’s skeleton argument then relies specifically on the risk arising both from the events involving his father’s enemies and the loan sharks at e.g. [10] where it states as follows:
“Essentially, the appellant fears two different groups of organised criminals and is not confident in the state’s ability to protect him or that internal relocation will provide a place of safety.”
14. There is no indication that the concession had been withdrawn by the time it came before the FTTJ. Indeed, the FTTJ records at [6] that the respondent accepts the “historic facts” but not that a risk arises as a result. The decision however also records in the same paragraph:
“The Appellant Skeleton Argument argues for risk of persecution from the loan shark. I confirmed this was the pursued basis of the claim for persecution and the account of the historic events around his father and gun smuggling were for background.”
15. As noted above that is not the position in the skeleton argument. I do not need to determine whether it is correct that the appellant, contrary to the clear terms of the skeleton argument, was only relying at the hearing on the risk arising from the loan sharks because of the agreed error set out below.
16. At [38-39] the Tribunal held as follows:
“The Appellant really has not provided any credible reason why he would have been able to remain in Albania [if] these serious criminals were out to kill him because of the incident in 2014. However, this claimed history is still relevant because in my view it is probative of what the Appellant says about the loan shark.
39. Furthermore, the claim these serious criminals involved in the smuggling of arms would not attempt to kill the Appellant or his father but instead send threats to kill the Appellant through his father is not credible. I question why such hardened killers would bother to make threats in these circumstances. If they were not willing to harm the Appellant’s father because he had worked for the forces in Albania, then it makes no sense they would approach him to threaten his son and do so without any apparent action against him.”
17. Here it appears that the FTTJ, contrary to the concession, doubts the appellant’s factual account in respect of the incidents involving his father’s enemies. It also appears that the FTTJ considered that the credibility of his account of the risk he faced from the gun smugglers was relevant to the credibility of his account of the risk he faced from the loan sharks. The tribunal’s position is set out even more clearly at [52] where it is held:
“I find the whole claim entirely false and do not accept the Appellant has any problems in Albania with gun smugglers or loan sharks. I consider these claims have been entirely fabricated and at a time when the Appellant was seeking to find ways to regularise his status in the United Kingdom to enable him to marry and settle with his partner.”
18. It is unarguably clear from the passage above that the FTT went behind the respondent’s concession that the underlying facts of the appellant’s account in respect of the gun smugglers were true. It is not suggested that the appellant was given any notice that the tribunal would go behind that concession.
19. In the circumstances there is a clear error of law on a material, indeed critical issue: not only did the FTTJ conclude that the accepted factual account in respect of the “gun smugglers” issue was not true, but the FTTJ as set out above was also of the view that her assessment of the truth of the “gun smugglers” issue was relevant to her assessment of the truth of the “loan sharks” issue. She comprehensively disbelieved both. The FTTJ did not consider the question of sufficiency of protection or internal relocation [54] because of her conclusions on credibility. It is clear from e.g. [55] that the conclusions in respect of Article 8 ECHR are also infected.
20. The parties agree that no part of the determination can in the circumstances stand. I accept that this is the correct conclusion. The matter will be remitted to the First-tier Tribunal for a full rehearing.
Other procedural matters
21. I note that these proceedings have been repeatedly delayed, and that it is now more than three years since the claim was made. I have been told that this is in part because it was wrongly allocated a “HU” number instead of a “PA” number. Whether that is correct or not is not a matter for me. I can see considerable force in the suggestion that this matter should be marked as unsuitable for the “float list” given the complex issues involved and the delays to date, though that is a matter in the first instance for the First-tier Tribunal listing office.
Notice of Decision
The determination of First-tier Tribunal Judge Mensah of 26 May 2025 did involve the making of a material error of law. The appellant’s appeal is allowed and the matter is remitted to the First-tier Tribunal for a full rehearing before a differently constituted tribunal with no findings of fact preserved.

Greg Ó Ceallaigh KC

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 September 2025