Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-003618
First-tier Tribunal No: PA/54632/2024
LP/01347/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6 November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE RIPLEY

Between

JA (INDIA)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Tobin, Counsel, instructed by Lova solicitors
For the Respondent: Ms Clewley, Senior Presenting Officer

Heard at Field House on 7 October 2025
ANONYMITY ORDER

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 appeals a decision of First-tier Tribunal Scott Baker (“the Judge”) dated 9 July 2025 dismissing the appellant’s international protection and human rights appeal.
Anonymity Order
2. The Judge issued an anonymity order. Neither party requested that the order be set aside. I observe that the appellant seeks international protection and consider that his private life rights protected under article 8 ECHR presently outweigh the right of the public to know his identity as a party to these proceedings. The latter right is protected by Article 10 ECHR.
3. The anonymity order is detailed above.

Relevant Facts
1. The appellant is an Indian national. The appellant’s claim was that his home area in Thiruvananthapuram was adversely affected by a state sponsored port development which resulted in him losing his home. The appellant took part in protests and was detained for one week and tortured in 2016 and detained again for a month in 2021.
2. In the reasons for refusal letter, the respondent found the appellant’s account credible, but he would not be at risk from the police on return and the police would generally be willing and able to offer protection. It will be appreciated that this later point, regarding sufficiency of protection, was an unusual stance as it was the police the appellant feared. In relation to the risk of return, the respondent considered that the appellant was relying on isolated incidents that had arisen from the protests concerning the port construction.
3. In the review the respondent further argued that having been completed, the port development was generally considered beneficial to the community. Further it was argued that the appellant could relocate as the police operated within State jurisdictions as set out in the June 2023 CPIN on Actors of Protection in India.

Grounds of Appeal
4. The appellant applied for permission to appeal to the First-tier Tribunal on the following grounds:
(i) The Judge failed to consider whether the alternative Convention reason of imputed political opinion applied.
(ii) The Judge unfairly determined the appeal without having received the appellant’s skeleton argument.
(iii) The Judge failed to apply Paragraph 339K. That paragraph should have applied in view of the respondent’s acceptance that the appellant had been detained and ill-treated.
(iv) The Judge failed to evaluate whether internal relocation was reasonable.
(v) The Judge’s findings failed to give due weight to the available medical evidence. The finding that ill-treatment was not “sufficiently severe” to engage Article 3 was irrational and inconsistent with the accepted facts. The Judge’s approach to the appellant’s scarring was also flawed.
(vi) The Judge had erred in her assessment of the credibility factors in Section 8.
(vii) The Judge had erroneously assessed the threshold of ill-treatment that may constitute serious harm.
5. Permission to appeal was granted on all grounds.

Analysis
Ground (i)
6. In the respondent’s decision dated 6 February 2024, the respondent has stated that the appellant’s claim did not give rise to a Convention reason (page 158). The respondent considered whether any Convention grounds applied and decided that the appellant did not satisfy the relevant requirements to be a member of a particular social group. The grounds argue that the Judge was required to consider whether other Convention grounds may have applied, particularly in the light of the appellant’s own claim that the relevant Convention ground was political opinion, and at paragraph 6, that he had a well-founded fear of persecution on that ground (page 27).
7. I do not accept Ms Tobin’s argument that the Judge was required to consider whether other Convention grounds may apply unless the appellant’s representative made an express submission that she need not do so. I accept Ms Clewley’s submission that as the appellant was represented, it was for his representative to argue political opinion. There is no statement from the appellant’s representative or evidence that he did so. The grounds do not assert that he did so. It may be that this was clarified in counsel’s skeleton, but this was never filed. The lack of Convention ground was clearly raised by the respondent.
8. I do not find that an alternative ground was identified as an issue in dispute and therefore it was not properly before the Judge to determine.
9. It is however important to note that Judge should have identified the issues in dispute, as set out in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC). If she had sought confirmation from the parties that a Convention ground was not relied on, it is very unlikely that the appellant’s representative would have agreed that one did not apply.
10. Ground (ii) and ground (iv) were not pursued.
Grounds (iii), (v) and (vii)
11. These grounds were argued together as they overlap.
12. The evidence and findings in the Judge’s decision include the following:
(i) The respondent’s acceptance of the appellant’s account of being injured during a protest in India [33].
(ii) The appellant had claimed that he had a steel rod inserted into his arm, as a consequence of his injuries, but had not provided any medical records [35].
(iii) The appellant said at the hearing that he had been injured in 2021, but in his witness statement had said this had occurred in 2016 [37]. Miss Tobin submitted that it was actually recorded in the appellant’s witness statement that he had beaten on the sites of his injuries when detained in 2021 (page 26)
(iv) The appellant’s account, as accepted by the respondent, was that that the appellant was hit in detention and in defending himself broke his right arm, and that a bottle was thrown at him by another police officer which broke on his face and he required nine stitches. The Judge does not accept that any insertion of a steel rod in the appellant’s arm occurred as a consequence of injuries sustained in police detention. [43]
(v) Whilst the respondent has accepted that the appellant has been tortured, the respondent has not particularised exactly what has been accepted [44]. The Judge then went on to repeat the injuries that she listed in the previous paragraph.
(vi) The ill-treatment the appellant had received did not reach the threshold to engage Article 3. She stated:

“he may have received some ill-treatment but that his evidence does not show that it was sufficiently severe. The appellant has not demonstrated that he was subject to such treatment each time that he was detained and his complaints centre on the one detention in 2016 when he could have been subject to abuse by a rogue agent(s) of the State.” [44]

“The appellant has been inconsistent in relating his account. He claimed that he was detained in 2016 and 2021 which has been accepted by the respondent and it was also accepted that he had come to the adverse attention from the police and government, but I do not accept that the level of ill treatment which the appellant received in 2016 or 2021 reached the threshold required to amount to persecution or serious ill treatment. I accept that he has scarring on his body, but he has failed to establish that the police caused these injuries. Whilst the respondent has not been clear in the acceptance as to what is meant by adverse attention, on the evidence the appellant has failed to establish that he has been significantly injured by the police in India.” [48]
13. The Judge has not recorded that that the respondent retracted the concession in the decision letter that the appellant’s account of his injuries was accepted. Nonetheless, the Judge does not accept that the appellant’s scarring was caused by injuries he had sustained at the hands of the police. She has explained why she rejected his claim that the insertion of a steel rod in his arm was a result of those injuries. She has not explained why she has rejected the photographs of other scarring on the appellant’s body as being caused by the police (page 33, 36-38). This omission is considered within the context that the respondent did not dispute the cause of those injuries. Within that context, the Judge has failed to explain why she does not regard the appellant as having been significantly injured. His injuries include injuries to his face which required nine stitches.
14. Whilst the respondent has specifically accepted the injuries the appellant sustained in 2016, the Judge has not made any clear funding on the ill-treatment the appellant claimed he received in 2021, as set out in his statement. Contrary to the Judge’s finding that the appellant’s complaint centred on his detention in 2016, the appellant has given detailed information about his ill-treatment when he was detained in December 2021 (paragraph 9 of his witness statement, page 26). The appellant has there explained that he was subjected to more brutal treatment and was severely beaten, assaulted with batons and that the officers targeted his existing injuries including his fractured arm and facial wounds. He said he was denied access to medical care and was interrogated and threatened daily during that month. The Judge has failed to make a finding on the information in the appellant’s witness statement.
15. The Judge has also failed to set out why she is of the opinion that the appellant may have been ill-treated in detention by a rogue agent of the State rather than by police officers who were suppressing the demonstrations.
16. The definition of serious harm at paragraph 339 CA of the Rules includes:
339 CA (iii) torture or inhumane or degrading treatment or punishment of a person in the country of return.
17. On the basis that the respondent accepted the list of injuries the appellant had sustained in 2016, including being hit in the stomach, sustaining fractures to his arm and having a bottle thrown in his face by police which resulted in him needing stitches, it is difficult to understand how the Judge was able to conclude that that treatment was not torture, inhumane or degrading treatment. Further the one reason given for finding that it did not reach that threshold was that his complaint centred on the one detention in 2016, whereas he had said in his witness statement that the treatment in 2021 was actually worse.
18. Overall I am not satisfied that the Judge had regard to the respondent’s clear concession that the appellant’s account of his injuries was credible, that the appellant went on to give further information in his witness statement about ill-treatment received in 2021 and the Judge has failed to adequately explain why she did not accept that the ill-treatment that led to those injuries did not comprise serious harm for the purpose of the relevant test. If the Judge was wrong to find that the appellant had not been subjected to serious harm, then she would have needed to consider the application of paragraph 339K. In these circumstances I have not gone on to consider the issue as to internal flight.

Remittal
19. I am mindful of the presumption in paragraph 7.2 of the Senior President’s Practice Statement for the Immigration and Asylum Chambers that appeals should be remade in the Upper Tier Tribunal and find that paragraph 7.2(b) applies. Both representatives agreed that any error as to the level of ill-treatment that the appellant had sustained would affect the assessment of the risk on return. It was agreed that if I found an error of law in relation to grounds (iii) and (v) that the appeal should be considered de novo by the First Tier Tribunal.

Notice of Decision
20. The decision of the First-tier Tribunal dated 9 July 2024 is set aside in its entirety consequent to material error of law.
21. The matter is remitted to the First-tier Tribunal sitting at Taylor House.
22. The decision is to be remade by a Judge of the First Tier Tribunal other than Judge Scott Baker.
23. The anonymity order is to continue.

F Ripley
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 October 2025