Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003656

First-tier Tribunal Nos: PA/57242/2024
LP/02713/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 12th of January 2026

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

CK
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Brown, Counsel instructed by Latif Solicitors
For the Respondent: Ms Z Young, Senior Presenting Officer

Heard at Bradford on 28 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 my oral decision which I delivered at the hearing today.
Background
2. In this matter the Appellant appeals against the decision of First-tier Tribunal Judge Fisher (“the Judge”) dated 24 June 2025 whereby the learned Judge had refused the Appellant’s appeal based on both protection and human rights grounds.
3. The Appellant had been granted permission to appeal on the papers by by Upper Tribunal Judge Jackson by way of a decision dated 8 September 2025. Permission to appeal had been granted on all grounds, albeit the learned Upper Tribunal Judge indicated that the third ground had been less persuasive.
The Hearing Before Me
4. At the hearing before me Ms Young had invited me to consider a preliminary issue and of which she informed Mr Brown of in advance this morning. She said that there was a Robinson obvious point in relation to the Judge’s decision. In short, the Judge had applied the wrong standard of proof. She referred to the Judge’s decision in particular at paragraphs 6 and 11. At paragraph 6 the Judge had correctly referred to this being an asylum claim which was made after 28 June 2022 and that thereby Section 32 of the Nationality and Borders Act 2022 applied. The Judge also correctly cited the Upper Tribunal’s reported decision in JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100. Ms Young submitted that the issue which had arisen was that when it came to applying that decision and that self-direction, the Judge had clearly materially erred because he said at paragraph 11:
“Despite these reservations, I accept that the Appellant has provided a detailed and credible account of her sexual orientation during her substantive interview. The standard of proof is relatively low. I am prepared to accept that there is a real likelihood that she is a gay woman”.
5. Ms Young submitted that here it was very clear that the Judge simply failed to apply the correct Section 32 NABA standard of proof. Ms Young said the consequence was that thereby the whole of the Judge’s decision was infected by that error and that the decision must be set aside as a whole and that the matter ought to be remitted to the First-tier Tribunal for hearing afresh on all issues with no retained findings.
6. Mr Brown initially sought to persuade me that there was no such error. This was understandable because some of the findings made by the Judge were favourable in relation to the Appellant’s sexual orientation and the acceptance that she had been the victim of gender-based violence. Mr Brown initially said that the Appellant’s appeal ought to succeed, despite the incorrect burden and standard of proof having been applied.
7. I invited Mr Brown to reflect on the submissions of the Respondent which he had heard this morning and to take instructions as to what his lay client’s instructions were.
8. On return Mr Brown told me, that very sensibly his lay client’s instructions were that albeit with some hesitation she agreed with the way forward suggested by Ms Young. He said that there was the risk that the Upper Tribunal would conclude today that there was no error of law in Judge Fisher’s decision and therefore in that situation his lay client’s whole claim would thereby remain dismissed.
9. I had said I would grant time to Mr Brown to reflect on these matters and to take instructions.
10. Mr Brown submitted that it was not an easy decision for the Appellant and that the prospect of the Appellant not succeeding at all was foremost in her mind.
Decision and Analysis
11. I have in mind the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Robinson [1998] 1 QB 929.
12. In this case whilst it was Ms Young who very fairly referred to the Robinson obvious error, it is not the Secretary of State who has appealed. It is the Appellant whose grounds of appeal come for consideration before me. I am aware that in protection claims the Robinson obvious approach is open for claimants and not the Respondent. Here it is clear though that without the section 32 NABA point, the Appellant’s appeal would likely fail leaving her with the dismissal of her appeal as a whole. That cannot be the correct approach in a situation in which the Judge had applied the wrong standard and burden of proof and which both parties agree was a material error.
13. In the circumstances, having reflected on the submissions made by Ms Young I conclude her submissions are entirely correct. Whilst the Judge did indeed refer at paragraph 6 to the correct legal self-direction, the Judge did not then go on to apply that self direction. The Judge’s error can be seen at paragraphs 7 and 11 and elsewhere. The Judge incorrectly referred to the standard of proof being relatively low. That was the old law and the Judge’s decision contains a material error of law. The Judge did not apply the self-direction which he had set out previously. The Judge’s decision is therefore set aside.
14. I have considered whether or not this is a matter which ought to remain for further consideration here at the Upper Tribunal or be remitted to the First-tier Tribunal. I apply AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I 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. I 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. I further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. I 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 First-tier Tribunal Judge contains a material error of law and is set aside.
There will be a complete hearing at the First-tier Tribunal on all issues.
None of the current findings shall stand.
The anonymity direction previously made will continue because the matter relates to a protection claim.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 November 2025