Tribunal decisions

The decision

Upper Tribunal UI-2025-003793
(Immigration and Asylum Chamber) Appeal Number: PA-01601-2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

MR
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Foot, of counsel
For the Respondent: Ms Young, a Senior Presenting Officer

Heard at Bradford on 14 November 2025

DECISION AND REASONS
1. The Appellant is a 30-year-old man who claims to be either a dual national of Iraq and Iran or, alternatively, a national of Iran and not a national of Iraq. He appeals with permission the decision of the First tier Tribunal dismissing his Protection and Human Rights Appeals promulgated on 12th December 2024.
2. The basis of the Appellant’s claim is that he gave an interview to the NRT-1 satellite TV channel during which he criticised a high ranking military official and President Barzani. The Appellant says that the official and President Barzani took offence to the Appellant’s comments and that they now wish to harm the Appellant. For this reason he says he cannot return to Iraq.
3. It is the Appellant’s case that, before moving to Iraq, he lived in Iran. There, he assisted the PKK. He was arrested by the Iranian authorities on multiple occasions and fled the country fearing ill treatment. He says he cannot return to Iran due to the fact that the authorities know that he has been involved with an illegal Kurdish nationalist group.
4. The Respondent rejected the Appellant’s claims, finding them not to be credible. The First Tier Tribunal agreed with the Secretary of State and dismissed the appeal.
Grounds of Appeal: Discussion and Findings
5. At the hearing before me, Ms Young accepted on behalf of the Respondent that ground 3, which alleged that the First tier Tribunal had fallen into a, “classic Mibanga error,” was made out. She accepted that this infected the entirety of the First Tier Tribunal’s decision and that none of the First Tier Tribunal’s findings of fact could be preserved.
6. In light of Ms Young’s entirely proper concession, it is not necessary for me to say much more. In Francois Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367, the claim for asylum was based on the appellant’s account that he had been captured in the Democratic Republic of Congo by Rwandan-backed rebels, who had tortured him. The appellant produced a medical report on his injuries, together with a report by a country expert. The Court of Appeal held that the adjudicator who dismissed the appellant’s appeal had disregarded both expert reports in concluding that the appellant’s case lacked credibility. She had only turned to the reports after making that adverse credibility finding. Both reports were regarded by the Court of Appeal as detailed and impressive documents. In his judgment, Wilson J said:-
“23. In the light of my view as to the proper despatch of this appeal, it would be wise for me to keep my own views about the effect of the evidence to a minimum. The basis of the appeal is not that the weight of the appellant's evidence, coupled with that of the two experts, should have driven every reasonable fact-finding body to accept his account and to uphold his appeal but that he has been the victim of a flawed fact-finding exercise on the part of the adjudicator and that the tribunal fell into legal error in failing to recognise it and to remit the appeal for redetermination. In this regard Miss Braganza relies heavily upon the way in which the adjudicator folded the doctor's report into her enquiry only at a point after she had reached her conclusions and upon the way in which she jettisoned the focussed comments of the professor.
24. It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence. Mr Tam, on behalf of the Secretary of State, argues that decisions as to the credibility of an account are to be taken by the judicial fact-finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact-finder's function in assessing credibility. I agree. What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence. Mr Tam has drawn the court's attention to a decision of the tribunal dated 5 November 2004, namely HE (DRC - Credibility and Psychiatric Reports) [2004] UKIAT 00321 in which, in paragraph 22, it said:
"Where the report is specifically relied on as a factor relevant to credibility, the Adjudicator should deal with it as an integral part of the findings on credibility rather than just as an add-on, which does not undermine the conclusions to which he would otherwise come."”
7. Buxton LJ agreed:-
“30. … The adjudicator's failing was that she artificially separated the medical evidence from the rest of the evidence and reached conclusions as to credibility without reference to that medical evidence; and then, no doubt inevitably on that premise, found that the medical evidence was of no assistance to her. That was a structural failing, not just an error of appreciation, and demonstrated that the adjudicator's method of approaching the evidence diverted from the procedure advised in paragraph 22 of HE, set out by my Lord.
31. Further, though perhaps less obviously, I agree that if an expert's view is to be rejected in the conclusive terms adopted by the adjudicator in this case, then proper procedure requires that at least some explanation is given of the terms and reasons for that rejection.”
8. In the present case, the Appellant relied upon psychiatric reports by Dr Nuwan Galappathie and Professor Cornelius Katona. The First-tier Tribunal considered these reports at paragraphs 56–57 of its decision, having already concluded at paragraph 51 that the Appellant’s claims concerning events in Iraq were not credible. I agree with Ms Young that this is a clear example of the First-tier Tribunal rejecting the Appellant’s credibility first, and only then turning to evidence that was relevant to that very assessment, thereby excluding that evidence from its proper role in evaluating credibility. This approach puts the cart before the horse and fails to consider the evidence in the round. I agree with Ms Young that this amounts to, “a classic Mibanga error” which infects the entirety of the First tier Tribunal’s decision. It must be set aside.
Disposal
9. I am conscious of the Court of Appeal's decision in AEB v SSHD [2022] EWCA Civ 1512, Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and 7.2 of the Senior President's Practice Statements. Sub-paragraph (a) deals with where the effect of the error has been to deprive a party before the Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the FtT, whereas sub-paragraph (b) directs me to consider whether I am satisfied that 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.
10. As the First tier Tribunal determination contains no findings of fact capable of being preserved, the matter must be remitted to the First Tier Tribunal to be determined afresh.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of a material error on a point of law. The decision of the First-tier Tribunal is set aside.
2. The matter is to be remitted to the First-tier Tribunal to be determined de novo by a judge other than Judge of the First Tier Tribunal Henderson.

Signed:

J. GREER

Deputy Upper Tribunal Judge Greer

Dated 1st December 2025