Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003496

First-tier Tribunal No: PA/00181/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
31st October 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

AND
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Jagerarajah, counsel
For the Respondent: Mr Diwnwyz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 15 October 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. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Sri Lanka. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.
2. The appellant appeals with permission against the decision, dated 31 March 2025, of a judge of the First-tier Tribunal Judge (‘the judge’) to dismiss his appeal on international protection and human rights grounds.
Background
3. The appellant claims that he faces a real risk of persecution if returned to Sri Lanka due to his imputed political opinion. He asserts that he was arrested and tortured by the Criminal Investigation Department (CID) in August 2021 after being falsely accused of assisting a former LTTE member to flee Sri Lanka using false documents and of having links to Tamil separatist diaspora groups. He was detained for five weeks and released only after a substantial bribe was paid. He later fled the country with his wife and child fearing re-arrest for breaching his reporting conditions. He claims there is now an arrest warrant against him, and that the authorities continue to search for him.
Appeal to the First-tier Tribunal
4. The judge dismissed the appellant’s asylum claim on the primary basis that his account lacked credibility. Although the judge accepted that the appellant’s claim, taken at its highest, engaged a Refugee Convention reason (imputed political opinion), she found multiple inconsistencies and implausible features in his narrative account. These included discrepancies in his account of arrest and detention, the nature of his relationship with the alleged LTTE-affiliated friend and the circumstances surrounding his release and departure from Sri Lanka. The judge also questioned the plausibility of the appellant continuing to work for a local authority after his alleged arrest and found that his wife’s evidence lacked probative weight as it was largely based on what the appellant had told her. The medical evidence of torture and mental health issues was addressed at paragraph [23]:
The Appellant has not been consistent in respect of the torture he suffered. He said at the hearing that he was tortured everyday but he told Dr. Gupta that it was either every one or two days. He has failed to mention all of his injuries as he did not refer to injuries on his arms and legs prior to speaking to Dr. Gupta. The Appellant claims that he did but despite sending amendments to other parts of his interview record, the Appellant did not amend his answer in respect of those injuries being missing from the record. I do note that Dr. Gupta has found the injuries still visible on the Appellant’s body as consistent with the reasons he provided but he has not explored the other probable causes for these injuries or excluded other possible causes as required by the Istanbul Protocol.
5. The appellant’s delay in claiming asylum after his arrival in the UK was considered to be damaging to his credibility. Overall, the judge found that the appellant was more likely to be an economic migrant who had fabricated his account to support an unfounded claim for protection.
6. The appeal was dismissed on international protection and human rights grounds. The judge concluded that the appellant had not demonstrated a real risk of serious harm or persecution on return to Sri Lanka, nor that his mental health condition would result in a breach of Articles 2, 3 or 8 of the ECHR.
Appeal to the Upper Tribunal
7. The appellant challenged the First-tier Tribunal’s decision primarily on the basis of its handling of the expert medical evidence. The grounds of appeal argued that the judge had unlawfully assessed credibility before engaging with the medical report, contrary to the holistic approach required by authorities such as Mibanga v SSHD [2005] EWCA Civ 367. The expert, Dr Gupta, had found the appellant’s physical scars to be highly consistent with torture and diagnosed him with complex PTSD. The appellant contended that the judge failed to make adequate findings on these conclusions and did not properly factor in the appellant’s vulnerability when assessing credibility. Additional grounds included suggested failures to consider the implications of the appellant’s breach of reporting conditions and the likelihood of an arrest warrant being in existence, which would place him on a stop list and expose him to risk on return.
8. At the error of law hearing, the respondent conceded that the judge had materially erred in law by failing to properly consider the expert medical report, particularly the scarring evidence and psychological findings. The respondent accepted that this error undermined the credibility assessment and the overall safety of the decision.
Discussion
9. While it is not for the respondent to decide whether a decision of the First-tier Tribunal involved a material error of law, in adversarial appellate proceedings it functions as a telling signal if the parties are agreed that the decision ought not to stand as a lawful determination of a protection claim requiring anxious scrutiny. I am satisfied that the concession was properly made and that the judge’s decision fell into material legal error in the assessment of important evidence going to the substance of the claim.
10. The appellant described being repeatedly tortured while in detention. There are several problems with how the judge assessed the evidence of Dr Gupta. Firstly, the judge noted an inconsistency in how frequently the appellant claimed to have been tortured. Leaving aside the marginal difference between the accounts of being tortured every day and every one or two days, there is nothing to indicate that the judge considered the appellant’s vulnerability as a witness in measuring the consistency of his various accounts. The judge appeared to accept he was a vulnerable witness at [6] of her decision, but did not carry this forward when considering the extent to which he might be expected to accurately, consistently and reliably recall the precise regularity with which he claimed to have been tortured. Dr Gupta, at page 19 of his report, noted that witnesses with mental health conditions are prone to confusion and memory loss. This coheres with the Joint Presidential Guidance Note on Vulnerable Witnesses and the observations made by Sir Ernest Ryder, SPT, in AM (Afghanistan) [2017] EWCA Civ 1123. If the judge was minded to reject the physical evidence of scarring partly on the strength of inconsistencies in the appellant’s narrative evidence, it was important for her to at least assess whether the variations in his various accounts might have been attributable to his acknowledged vulnerabilities.
11. An additional concern stems from the judge’s characterisation of Dr Gupta’s overall findings. It was stated that the expert had “found the injuries still visible on the Appellant’s body as consistent with the reasons he provided but he has not explored the other probable causes for these injuries or excluded other possible causes as required by the Istanbul Protocol”. Dr Gupta actually said this at the outset of the opinion section of his report:
Ultimately, it is the overall evaluation of all scars and not the consistency of each scar with a particular form of attack that is important in assessing the history. The number, distribution and nature of the scars are highly consistent with [the appellant]’s descriptions of how they were sustained but other explanations cannot be excluded.
12. Not only has the judge downgraded the strength of the expert findings to “consistent” from the more probative standard of “highly consistent” seen in the report, but the nuanced expert analysis of the overall spread of the totality of the bodily marks has been lost in the judicial analysis. The findings at [23] of the decision give the impression that the expert has failed to address his mind to the possibility of other causes for the scars whereas the report concluded that other explanations could not be excluded which at least shows that the expert had this important factor well-in-mind. It is overly blunt to say that the expert did not explore other probable causes. It was not his function to exclude other possible causes but to comment on whether other explanations might exist. The inability to exclude other causes was instrumental in concluding that the injuries were “highly consistent” with torture, as opposed to an even higher threshold.
13. Expert evidence commenting on the existence of scars which may be attributable to torture demand the closest judicial attention to comply with the duty to give international protection claims anxious scrutiny. I am satisfied that the assessment of the scarring evidence did not meet this minimum standard. I am in no doubt that full and lawful consideration of this important evidence may well have brought about a different overall outcome and that the error is demonstrably material. I am equally satisfied that if this evidence had been approached lawfully, the assessment of the appellant’s overall credibility may have been different such that it would be inappropriate to preserve any findings of fact.
Disposal
14. In deciding where the underlying grounds of appeal should be redetermined, the starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides:
7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
15. When I ask myself what the interests of fairness and justice demand, and bear in mind the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I am satisfied that remitting the matter to the First-tier Tribunal is the appropriate course. I reach this conclusion because the protection claim falls to be decided afresh after a full fact-finding process. The First-tier Tribunal is best placed to undertake this task. The parties agreed that this was the appropriate procedural course given the comprehensive basis on which the decision has been set aside.
Notice of Decision
The appealed decision involved a material error of law and is set aside. I preserve no findings of fact and remit the matter to the First-tier Tribunal to be decided after a de novo hearing before a judge other than the judge whose decision has been set aside.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 October 2025