Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003635

First-tier Tribunal No: PA/70869/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

AG
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Winter, counsel, instructed by No Borders Law
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at 52 Melville St, Edinburgh, on 2 December 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
1. I make an anonymity direction because this appeal arises from the appellant’s protection claim.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge McGrade, dated 17/07/2025, which dismissed the Appellant’s appeal on all grounds.
Background
3. The Appellant says he is a citizen of Eritrea. He claimed asylum in the UK on 27/04/2024. The Respondent refused the Appellant’s application on 16/09/2024.
The Judge’s Decision
4. The Appellant appealed to the First-tier Tribunal. On 17/07/2025 First-tier Tribunal Judge McGrade (“the Judge”) dismissed the Appellant’s appeal.
5. The Appellant lodged grounds of appeal, and, on 11/08/2025, First-tier Tribunal Judge Adio granted permission to appeal. He said
2. The only ground put forward is that the judge has required more of the Applicant than necessary. It was argued that the judge fell into the same error as was identified in the case of MAH (Egypt) v SSHD [2023] EWCA Civ 216, namely requiring more of the Applicant than necessary. It was noted that the judge criticised the Applicant for not obtaining supporting statements from his family and that the judge appears to have proceeded on the basis that the Home Office criticisms of the Applicant are not well-founded, paragraphs 10 to 12 of the determination. It is argued that the judge gives weight to the expert report, which would be that the Applicant’s position being Eritrean was plausible and that bearing in mind the standard of proof, the Applicant adducing expert evidence and the Tribunal rejecting the Home Office’s criticism of the Applicant’s evidence, the Tribunal required more of the Applicant than necessary in terms of obtaining supporting statements from his family.
3. The Court of Appeal did emphasise in the case of MAH (Egypt) that there is no requirement on an Applicant to produce corroborative evidence in a protection claim. However, the absence of corroborative evidence can be of evidential value in some circumstances such as where it could reasonably have been obtained. There is no good reason for not obtaining it.
4. The error of law in this case is that the judge had identified that certain criticisms of the Applicant’s evidence was not justified and the judge had also attached weight to the country expert report and at paragraph 24 in concluding the judge did not rule out the plausibility that the Applicant is Eritrean. Bearing in mind the lower standard of proof with regards to reasonable degree of likelihood concerning the risk on return and the findings already made in favour of the Applicant, the judge erred by requiring further evidence of corroboration concerning the Applicant’s claim. It is arguable that the judge applied a high standard of proof with regards to requesting further corroborative evidence bearing in mind what was already before the judge. There is an arguable error of law.

The Hearing
6. For the appellant, Mr Winter moved the grounds of appeal. He quoted a number of passages from MAH (Egypt) v SSHD [2023] EWCA Civ 216, and told me that the Judge fell into the same error identified at paragraph 4 of MAH (Egypt). Mr Winter told me that, in his decision, the Judge found that the appellant rebuts the respondent’s reasons for refusing his application for international protection and places weight on the expert report the appellant relies on, but at [20] of the decision the Judge says that the difficulty is the absence of documentary evidence,
(b) Mr Winter said that the Judge has applied the wrong standard of proof and that the Judge searched for corroboration and documentary evidence which was entirely unnecessary. Mr Winter said that the appellant’s evidence is supported by the expert report and that is sufficient to discharge the burden of proof.
(c) In the alternative, Mr Winter said that the Judge erred materially because of inadequacy of reasoning. He said that informed reader is left in doubt about what the Judge makes of the expert report.
(d) Mr Winter asked me to set the decision aside.
7. For the respondent, Mr Mullen resisted the appeal. He relied on the respondent’s rule 24 note and said that the decision does not contain an error of law, material or otherwise. Mr Mullen told me that this case can be distinguished from MAH (Egypt) and reminded me of the guidance given in TK (Burundi). He asked me to dismiss the appeal and allow the decision to stand
Analysis
8. The area of dispute in this appeal is the appellant’s nationality. The respondent thinks the appellant is Ethiopian. The appellant says that he is an Eritrean. He says he left Eritrea when he was eight years old and lived in Ethiopia since then. The respondent accepts that if the appellant is Eritrean his application for international protection must succeed.
9. At [11] and [12] of the decision, the Judge considers the respondent’s criticisms of the appellant’s account, and is dismissive of those criticisms saying
I do not attach great deal of weight to these issues…
10. Between [13] and [17], the Judge considers an expert report from Dr Awol Allo, a senior lecturer in the School of Law at the University of Sheffield. The pivotal point in the judge’s decision is [20]. where the Judge says
The difficulty I have with this appeal is that there is no documentary evidence before me and the only source of information on the appellant’s nationality is the appellant. His evidence on his life in Eritrea and his nationality is neither detailed nor particularly convincing. The situation will of course often arise in asylum appeals where the only source of information is the appellant. However, I do not consider that this is a case where no supporting evidence can be provided. It is the appellant’s position that his parents, two of his four brothers and his two surviving sisters are all still living Ethiopia. He has also indicated that his mother paid for the journey between Sudan and Libya. It is also the appellant’s position that he has two other brothers, both of whom are working in different towns in South Africa, having been there since 2015 and 2019 on working visas.
11. Between [21] and [23] the Judge considers whether there are other potential sources of evidence. At [24] he says
I do not rule out the possibility that the appellant is Eritrean. However, he has provided no supporting evidence that he is Eritrean, in circumstances where his evidence is far from compelling and it appears to me that there are a number of possible sources of information or documentation which the appellant could rely upon, but which he has chosen not to or at least failed to produce for this appeal. In these circumstances, I am unwilling to hold that the appellant is Eritrean.
12. At [4] of the decision the Judge applies the wrong standard of proof. The appellant’s protection claim was made on 27 April 2024. ss30-39 of the Nationality and Borders Act 2022 apply. The guidance given in JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100 is the guidance to be followed, but that does not make a difference in this case.
13. Granting permission to appeal, First-tier Tribunal Judge Adio correctly identified the error of law. In his decision, the Judge identified (the respondent’s) criticisms of the appellant’s evidence which were not justified and attached weight to the country expert report. Having done that, he says at [24] that he would not rule out the possibility that the applicant is Eritrean. It is then the Judge takes a wrong turn and looks for corroboration. That is a material error of law.
14. In TK (Burundi) v SSHD (2009) EWCA Civ 40 the Court of Appeal said that where there were circumstances in which evidence corroborating the appellant's evidence was easily obtainable, the lack of such evidence must affect the assessment of the appellant's credibility. It followed that where a judge in assessing credibility relied on the fact that there was no independent supporting evidence where there should be and there was no credible account for its absence, he committed no error of law when he relied on that fact for rejecting the account of the appellant.
15. In MAH (Egypt) v SSHD [2023] EWCA Civ 216 the Court of Appeal found the Upper Tribunal had erred in requiring corroborative evidence because it had asked more of the appellant than was necessary. The court said that the absence of corroboration was not fatal in asylum cases and Singh LJ provided a wide-ranging exposition of the standard of proof in asylum cases, credibility and the role played by the appellate court in asylum appeals.
16. In this case, the Judge found that there was little merit in any of the respondent’s reasons for refusal of the appellant’s claim for international protection. The Judge then attached weight to an expert report. The Judge had two sources of evidence which addressed the respondent’s reasons for refusal but still went in search of corroboration. The Judge does not explain why two sources of evidence were not sufficient.
17. The decision errs materially in law. I set it aside.
Remaking the decision
18. An application is made under rule 15 to admit further evidence. Both representatives agreed that if I identified a material error of law and set the decision aside, I should go on to consider the documentary evidence and substitute my own decision.
19. The appellant produces photocopies of his two children’s birth certificates. Each of those birth certificates says that the appellant is the father of his children and that the appellant is Eritrean.
20. The appellant produces an addendum report from Dr Awol Allo dated 25 September 2025. In that addendum report Dr Allo says
I came to the view that the Appellant is more likely to be Eritrean than not
And at paragraph 14 of his report Dr Allo concludes
Based on the evidence, I consider he is more likely to be Eritrean than not.
21. There is no challenge to Dr Allo’s conclusions. The weight of reliable evidence indicates that it is more likely that the appellant is Eritrean.
22. The appellant therefore discharges the burden of proving that he is a national of Eritrea. The respondent says that if the appellant is Eritrean his claim must succeed. It therefore follows that the appellant’s appeal is successful.
Decision
1. The decision of the First-tier Tribunal dated 17/07/2025 errs materially in law and is set aside
2. The decision in the appeal is remade.
3. The appeal is allowed on protection grounds.

Signed Paul Doyle Date 2 December 2025
Deputy Upper Tribunal Judge Doyle