Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003593

First-tier Tribunal Nos: PA/63468/2024
LP/03922/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 8th of January 2026

Before

UPPER TRIBUNAL JUDGE MAHMOOD
DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

AY
(ANONYMITY ORDER CONTINUED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sadeghi of counsel, instructed by Elias Yaman & Co Solicitors
For the Respondent: Ms Newton, a Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 17 November 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 the oral decision delivered at the hearing today.
Background
2. The Appellant, a national of Turkey, appeals against the decision of First-tier Tribunal Judge O’Rourke (“the Judge”) dated 2 July 2025 whereby the Judge had dismissed the Appellant’s appeal based on international protection and human rights grounds.
3. Permission to appeal had been granted by First-tier Tribunal Judge Seelhoff by way of a decision dated 6 August 2025.
Appellant’s Grounds of Appeal
4. The Appellant relies on 2 grounds of appeal. Ground 1 contends that the Judge’s finding that the witness evidence from the Appellant’s family members who live in the United Kingdom ought to have been provided because it would have been able to corroborate the Appellant’s account of what happened to him in Turkey. It is also said that the Appellant was not asked about this at the hearing.
5. Ground 2 contends that Judge had erred when concluding in his decision at paragraph 22(ii) because the Appellant had not been given an opportunity to address the issue about the police attack. This ground states that the Appellant ought to have been given an opportunity to address the issue before adverse findings were made.
6. Permission to appeal was granted by First-tier Tribunal Judge Seelhoff. He clearly said as follows when granting permission to appeal on both grounds:
“I have reviewed the refusal letter and the review and neither takes issue with the alleged failure to obtain corroborative evidence. The Judge does not record on the decision whether or not this was raised at the hearing. The Judge records an exchange as to why the uncle did not give evidence but not as to any other members of the family. It is arguable that the judge’s approach was procedurally unfair. The grounds assert that the judge further erred at 22(ii) in holding that the Appellant’s account of the date of a police attack was inconsistent. These inconsistencies do not appear to be raised in the review or the original decision. This is not mentioned as an issue discussed in cross examination and the finding the judge made was that the account was ‘inconsistent’ without explaining in what way this was”.
The Hearing Before Us
7. We heard submissions from Mr Sadeghi on behalf of the Appellant who amplified the grounds of appeal which had been drafted by different counsel who had been instructed previously for the hearing.
8. Ms Newton on behalf of the Respondent took us through the Judge’s decision. She referred to the Judge’s decision at paragraph 16(iii) that the paternal uncle had brought the arrest and search warrant to the UK because the lawyer in Turkey did not wish to do so fearing repercussions from the authorities there. The Judge had referred to the issue of corroboration at paragraph 19 of the decision, including with reference to the decision in ST (Corroboration-Kasolo) Ethiopia [2004] 00119. A summary of Ms Newton’s submissions were that the Appellant had not been deprived of the opportunity to explain why there was a lack of documentation or inconsistencies or in relation to the asking questions of the uncle. Ms Newton said that in any event even if we were not with her, corroboration which was available and should have been provided.
Consideration and Analysis
9. We remind ourselves at the outset that there has to be appropriate judicial restraint in relation the assessment of an appeal from the specialist First-tier Tribunal. We also remind ourselves 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.
10. More recently the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 revisited the proper approach to appeals. Arnold LJ, with whom Singh and King LJJ agreed, explained that the role of the Appellate Court or Tribunal must be exercised with restraint. His Lordship said at paragraph 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. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope of Craighead.”
11. Before us, unfortunately, neither party was familiar with the Court of Appeal’s decision in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216; [2023] Imm. A.R. 713. Therefore, we invited both parties to read that case and we then heard submissions from them on it. Ms Newton said, in effect, that she could see now the effect the Court of Appeal’s judgment had on this appeal, but she had no instructions to concede the matter.
12. In reality, the appeal before us is a strikingly similar situation to that which appeared for consideration at the Court of Appeal in MAH. Namely, despite there being a self-direction by the Tribunal that they should not usually seek corroboration, they nonetheless went on to seek corroboration anyway. Singh LJ, with whom King and Warby LJJ agreed, set out in some detail the relevant legal principles in relation to corroboration. At paragraph 86 his Lordship said:
“It was common ground before this Court that there is no requirement that the applicant must adduce corroborative evidence: see Kasolo v Secretary of State for the Home Department, a decision of the then Immigration Appeal Tribunal. On the other hand, the absence of corroborative evidence can, depending on the circumstances, be of some evidential value: if, for example, it could reasonably have been obtained and there is no good reason for not obtaining it, that may be a matter to which the tribunal can give appropriate weight. This is what was meant by Green LJ in SB (Sri Lanka) at para. 46(iv)”,
and at paragraph 87:
“I accept Mr Jones’s submissions on Ground 3. Although the UT directed itself, at para. 84, that there is no legal duty on the Appellant to corroborate his claim, that was in substance the basis on which it proceeded. Each of the three perceived deficiencies in the evidence adduced on his behalf was to the effect that he could have but had not obtained corroborative evidence to support his claim. In the circumstances of this case, bearing in mind both the relatively low standard of proof and the fact that the Appellant had adduced positive evidence which supported his claim (as the UT recognised), evidence both of what he had himself witnessed and evidence of experts which was consistent with his claim, I have reached the conclusion that the UT required more of him than was necessary. It then fell into error by concluding that the failure to adduce corroborative evidence undermined his credibility with the result that his evidence was found not to be ‘truthful’, at para. 87”.
Conclusion
13. In our judgment, the Judge materially erred in law when stating at paragraph 20(i) that the Appellant’s failure to provide corroborative evidence without good reason was sufficient to enable him to find that the Appellant was not a credible witness.
14. What was required was an assessment of the Appellant’s case even without corroborative documents and based on the documents which were available. It was not sufficient for the Judge to refer to a lack of the documentation to then support an adverse credibility finding.
15. Additionally, it was incumbent upon the Judge to ensure that matters which were going to be the subject of adverse findings were properly put to the Appellant so that he had been given an opportunity to deal with them. Especially if those matters had not been raised against the Appellant previously in the Respondent’s Reasons For Refusal Letter or Review.
16. In our judgment, the combination of these two errors is such the decision of the First-tier Tribunal contains a material error of law. We remind ourselves of the duty of anxious scrutiny in protection claims. We have in mind the relatively young age of this Appellant and the way in which the rest of the decision, when considered as a whole, does not set out in detail the claim in a manner which deals with matters sufficiently, despite the need to keep decisions as short as possible.
17. We had canvassed with the parties what their submissions were if we were to find that there was a material error of law in the Judge’s decision. Both parties had recognised the need for the findings to be fully revisited.
18. We have considered whether or not this is a matter which ought to remain for consideration here at the Upper Tribunal or be remitted to the First-tier Tribunal. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) We consider whether to retain the matter for remaking here at the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. We take into account the history of this case, the nature and extent of findings to be made as well as the nature of the errors in this case. We further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. We conclude that the appropriate decision in this case is that I remit the matter to the First-tier Tribunal with no retained findings.
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 this matter relates to a protection claim.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 November 2025