Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004020
UI-2025-004024
UI-2025-004025
First-tier Tribunal No: PA/63005/2024
PA/63012/2024
PA/63014/2024
LP/06024/2024
LP/05844/2024
LP/06021/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

21st August 2026
Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

JAMR
SMR
SMJ
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department

Respondent

Representation:
For the Appellant: Mr R. Subramanian of Lambeth Solicitors
For the Respondent: Mr M. Parvar, Senior Home Office Presenting Officer

Heard at Field House on 6 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellants appeal, with permission, the decision of the First-tier Tribunal (“FTT”) dated 2 April 2025 dismissing their appeals against the respondent’s refusals of their protection and human rights claims. I can only set aside the decision if I decide that it contains a material error of law. The respondent opposes the appeal.

2. Anonymity has been in place throughout as this is a protection appeal and the need to respect the obligations under the Refugee Convention outweigh the public interest in open justice.

3. The appellants are all nationals of Colombia. JAMR is the main appellant and the others are his children. They are dependent on his claim. From now on I shall treat the first appellant as the main appellant and refer to him as “the appellant”. The respondent also refused the appellant’s wife’s protection claim, but she was not given a right of appeal. Their protection claim stems from fear of a criminal gang in Colombia.

The Decision of the FTT

4. After examining the relevant country material, The FTT found that the appellant’s fears arose for a Convention reason, namely political opinion on the basis that the criminal gang they fear can be considered a political actor in Colombia [17]. However, the FTT did not find the appellant to have a subjective fear of the gang on return. That decision was based on the appellant’s actions after the threats started in March 2022 not being consistent with someone who had such a subjective fear. The judge attached particular weight to the appellant relocating within the same area, keeping the children at the same school, and organising their wedding, which undermined his claim that they hardly left the house. The FTT also found that they delayed leaving Colombia until November 2022 but, in any event, they left for their honeymoon. Furthermore, the FTT did not accept that the threats emanated from the AGC-Clan Del Golfo because of the appellant’s delay in identifying the gang and as there was no explanation as to how he linked the threats to the gang. The FTT’s findings are summarised at [26] as follows:

“On his account he remained in the same area and visible, he was only bribed twice by his boss and all threats came from unknown individuals without the appellant himself ever being approached in person. For all these reasons, I cannot be satisfied on balance that he or his family demonstrated that they have been threatened as claimed. I find that on balance the appellant has failed at the very core of his account to demonstrate that he had a subjective fear from the gangs in Colombia as claimed.”

The Grounds of Appeal and Permission

5. The appellant’s challenge is really to the credibility findings spread over six different grounds. Ground 7 challenged the FTT’s assessment of the best interests of the child assessment, but the appellants were not permitted to argue that. When Upper Tribunal Judge Bulpitt granted permission on 3 June 2026 he noted that ground 3 was arguable but given the overlap with grounds 1-6, he granted permission on all of them. As to ground 3 he said:

“ground 3 is arguable as it suggest that the appellant’s wife gave evidence that was unchallenged but which has nevertheless been rejected without explanation. “

6. The appellant had said in ground 3 that his wife’s evidence was that she was threatened at her children’s school and that had been disregarded without proper evaluation.

7. In summary, the grounds are:

Ground 1 – misapplication of the subjective fear test as contained in JCK (Botswana) [2024] UKUT 00100;
Ground 2 – the FTT failed to assess plausibility, and put undue weight on credibility without considering the evidence in the round;
Ground 3 – failure to consider key evidence;
Ground 4 – the FTT wrongly drew adverse credibility findings on the marriage issue;
Ground 5 – the FTT failed to consider the evidence referred to at [27] properly within the risk assessment;
Ground 6 – the FTT failed to consider the risk against relevant background material.

8. In his skeleton argument, Mr Subramanian re-branded the grounds reflecting the permission decision, with the former ground 3 now occupying prominence as ground 1. That was Mr Subramanian’s main focus at the hearing although both representatives touched on the remaining grounds.

The Hearing

9. I was provided with a 641 page bundle which included Mr Subramanian’s skeleton argument. Mr Parvar had not seen that so I allowed time for him to read it at the start of the hearing. I heard submissions on behalf of both parties which I refer to later in my discussion of the issues. At the end of the hearing I reserved my decision which I now give with my reasons for it.

The Legal Framework

10. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. 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 SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. 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 SSHD [2020] UKSC 49. 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 FTT (SEC) [2013] UKSC 19. I have kept these considerations in mind when coming to my decision.

11. The appeal at the FTT considered the appellant’s protection claim under the regime set out at section 32(2) of the Nationality and Borders Act 2022 (“NABA”). That says, as relevant:

“The decision-maker must first determine, on the balance of probabilities—
(a) whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the asylum seeker does in fact fear such persecution in their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) as a result of that characteristic.”

12. The headnote of JCK provides that the approach in section 32 cases is as follows (as relevant):

“2. In an appeal to which s32 NABA 2022 applies, the proper approach is to address each of the questions posed by the section expressly and sequentially.

3. Question 1 is whether, on the balance of probabilities, the claimant has a characteristic
which could cause them to fear for one of the five reasons set out in the Refugee
Convention. In simple terms: is there a Convention reason?

4. Question 2 is whether, on the balance of probabilities, the claimant “does in fact fear”
such persecution. This is the ‘subjective fear’ test.”

Discussion and Conclusions

13. The relevant section of the appellant’s wife’s evidence is found at [10] of her witness statement which says:

“I confirm I received threats in person which scared me. The threats were more serious when on 04/20/2022 two men on a motorcycle, one of them approximately 30 years old and about 1.70 metres tall, whose face could not be identified because he was wearing a helmet, approached me at the exit of the Nuevo Eden School in Palmira where my daughter studied, told me to look at the ground and ”tell your husband to change the project or your family will be hurt”. I was not sure of the names of the gangs as several gangs operate and I believe the gang's name is GAC-Clan del Golfo."

14. At [8] of the FTT’s decision it is noted that the appellant’s wife was called but “no questions were put to her on behalf of the Respondent”.

15. The FTT was clearly aware of the claim of the threats to the appellant’s wife at the school as it is referred to at [4] when summarising the claim as found in the refusal letter. The FTT referred to it again at [20] although in the context of evaluating the appellant’s evidence. At [21] the FTT said:

“If the gangs were as powerful as the appellant stated, it is unclear why he would have remained in the same area and the children would attend the same schools if he had an ongoing fear from them. The appellant would remain traceable, through the children especially if the gangs already knew where the children went to school having threatened his wife there. I find therefore the appellant's actions in remaining in the same area detracts from the credibility of his account to have been subjected to continuing threats.”

16. At [22] the FTT referred to the school incident in the context of that being the event which caused the appellant to claim that after that they hardly left the house.

17. I have set out [26] of the FTT’s decision at [4] above from which it is clear that the FTT expressly rejected the appellant’s account to have been threatened as claimed. Given the extent to which the FTT referred to the threats at the school, that finding must include a rejection of that threat too.

18. The issue for me is whether or not that was open to the FTT without evaluating the wife’s evidence or giving reasons for discounting it. In the skeleton argument, the appellants accept it was open to the FTT to reject it, notwithstanding the absence of challenge by the respondent at the hearing, but not without giving reasons.

19. On this point, Mr Parvar’s submissions were that it is clear from [8] and [9] of her witness statement that the appellant’s wife was largely adopting and relying upon the appellant’s account. It was he who claimed to have refused the bribe and therefore became the subject of the threats so it is obvious that he would be the main witness to be cross-examined. Mr Parvar accepted that the appellant’s wife did refer expressly to the threat to her at the school at [10] of her witness statement, but submitted that the appellant also spoke of that and there was no reason to think he was not cross-examined about it at the hearing.

20. Mr Subramanian’s overarching point in response was that it was the appellant’s wife who was the witness to the threats at the school, not the appellant, yet the FTT has discounted her evidence without it being challenged and without explaining why.

21. I find there to be force in this argument. I agree that the appellant cannot speak to what happened at the school. He was not there. One can only speculate what the FTT would have made of the wife’s evidence. She was there and tendered so, if the evidence was felt to be important and was disputed, she could have been cross-examined or, at the very least, the respondent should have been asked to clarify if she accepts the content of her witness statement. It is of course possible that exactly the same concerns would have been raised by the FTT and used as reasons to reject the wife’s credibility. But, to reject it without hearing from or evaluating the only witness who could speak of the event in question, and clearly one which was integral to the core of the claim to be at risk was, in my judgment, an error of law (failure to consider material evidence and/or inadequate reasoning).

22. The other issue is whether, given everything else the FTT said, the outcome would be materially different. As I just indicated, the appellant’s wife’s evidence may have been rejected for the same reasons as the FTT rejected the appellant’s claim to have a subjective fear. Before answering that question, I turn to the remaining grounds in order to decide if the remaining parts of the decision remain, otherwise, free of legal error.

23. Ground 1 is a criticism of the FTT’s general approach to the evidence. Here, Mr Subramanian relied on what the Upper Tribunal had to say at [17] of JCK in relation to the second question the Tribunal is to ask itself and which is as follows:

“The provision simply requires the decision maker to consider whether the asylum seeker “does in fact fear”: it is what is otherwise referred to as the ‘subjective fear’ test. Assessing that fear is a discrete exercise from assessing whether past events occurred. Consider a claimant who has been horribly persecuted in the past but whose persecutors have now fallen from power: he could prove, on balance, that the material facts he has presented are true, but he may no longer in fact be afraid. Conversely it is well understood in this jurisdiction that claimants who are “in fact afraid” may seek to exaggerate, or even falsify, past events in order to prove their case. There will be cases in which the acceptance or rejection of historical facts presented by a claimant will inform the decision on whether or not he is “in fact afraid”. As it happens, this is one of them. That is not however always the case. Section s32(2)(b) asks decision-makers to consider a different question, and in doing so relegates the matter of ‘credibility’ to where it belongs in the refugee risk assessment: it can be relevant, but will not on its own be determinative.”

24. As I mentioned at the hearing, it was open to the FTT to have made findings in which it accepted the appellant’s account of past events but still to have rejected his account to fear the gang on the basis that his actions were not consistent with a person having such a fear. As [17] demonstrates, that would have been a perfectly permissible approach applying JCK.

25. In fact, that is not what the FTT did at [26]. The FTT rejected the appellant’s account of past events. But the approach set out in JCK outlines why it is important to keep in mind the relevant question, namely, whether the appellant can show on balance that they have a subjective fear. On its face, this is precisely what the FTT did (see for example [26]). I do not find Ground 1 made out.

26. I also note what was said at [18] of JCK as follows:

“The country background material is always going to be relevant here, because it provides context to assessing someone’s claimed fear. If a claimant is from, for instance, a particular ethnic group widely persecuted in his country of origin, that is going to be a relevant consideration when assessing whether or not he is in fact afraid. Again, it is important to remember that this is, at this stage, not an assessment of risk: this is an assessment of whether someone is afraid.”

27. I mention that because of what is said at Ground 6 and to a certain extent Ground 2. The criticism is that the FTT did not evaluate the appellant’s account against the country material. In other words, did not assess whether or not the claim was plausible given what is known about the country situation in Colombia, focusing instead on the credibility of the appellant’s account.

28. I deal with this fairly shortly. The FTT was patently aware of the role that criminal gangs play in Colombia having examined it extensively in answering the first of the JCK questions. I do not doubt that the FTT had that very much in mind when considering the credibility of the appellant’s account that, notwithstanding he and his family had been threatened by the criminal gangs, he did not relocate very far away, he kept his children in school and he organised and celebrated his wedding. In principle, this was a permissible approach applying JCK and does not reveal any failure to consider the country material or the general plausibility of the claim.

29. As for ground 4, the submissions were that the wedding was only a small one so it was not open to the FTT to make adverse credibility findings as it did without putting this to the appellant.

30. The appellant’s witness statement does not say anything about the size of the wedding. It was open to the judge to take the appellant’s evidence at face value. The finding that such an event was not consistent with a claim to have a subjective fear was rationally open to the judge. I do not find ground 4 made out.

31. I do not find anything much turns on Ground 5. This challenges the FTT’s approach to the documentary evidence of the appellant’s employment at [27] of the decision which concludes by saying:

“Whilst this supports the appellant's employment and involvement with the project, I am not satisfied on balance when I consider this in the round with all the matters outlined above that it demonstrates he was bribed by his boss or that he received threats as claimed.”

32. There is nothing wrong with this approach. It is rationally open to the FTT to have accepted the appellant’s account of his employment but rejected his claim to have been threatened and Mr Subramanian was not able to identify to my satisfaction a legal error in this approach. I accept his submission that the FTT was obliged to consider all the evidence in the round when determining the answer to the second JCK question, but if the evidence does not go to the disputed issue, it is hard to see how the FTT could be criticised for finding it not to assist on that issue.

33. So where does that leave the materiality of the error I have identified? Whilst I have reservations about whether the outcome would have been any different, I am driven to the conclusion that it is speculative to conclude it would not have done. The appellant’s wife may have been a compelling witness. If so and if the FTT was satisfied that the threats at the school took place, this is likely to change the complexion of the analysis about whether the appellant held a subjective fear. By that I mean it would shift from one where the evidence pointed away from the events having happened at all (hence no subjective fear) to one where threats had taken place but was there a subjective fear that they would, in fact, be acted upon. Until an evaluation of the wife’s evidence is undertaken, the context of the assessment of whether there is a subjective fear is not fully known.

34. For these reasons I am satisfied that in an otherwise thorough and well-reasoned decision, the FTT fell into error by not addressing the appellant’s wife’s evidence and/or giving reasons for rejecting it and that was material to the outcome of the appeal. Accordingly, the decision is set aside pursuant to section 12(2)(a) of the Tribunal, Courts and Enforcement Act 2007.

Disposal

35. Both representatives were neutral on the venue for re-making in the event that I found an error of law. I have considered what, if any, findings can be preserved. The FTT’s assessment of the first JCK question was not challenged and her finding that there is a Convention reason is preserved. Otherwise, for the reasons I give at [33] above, the assessment of the wife’s evidence needs to take place before any lawful findings of fact can be made including on whether or not the past events had taken place and whether the appellant has a subjective fear. For these reasons, I do not find any of the FTT’s decision relating to the second JCK question can be preserved and fresh findings of fact will need to be made. In the event that the appellant is found to have a subjective fear, the remaining three JCK questions (as to whether such a fear is well-founded) need to take place. The FTT did not need to address those in light of how question 2 was decided.

36. With that in mind and with due regard to Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and para. 7.2 of the Senior President’s Practice Statements, I am satisfied that the appropriate disposal is to depart from the general principle of remaking in the Upper Tribunal and remitting the appeal to the FTT given the extent of the task still to be undertaken and so the appellant is not deprived of the two-stage appeal process.

Notice of Decision

The decision of the First-tier Tribunal contains a material error of law and is set aside with preserved findings as set out at [35] above.

The appeal is remitted to the First-tier Tribunal to be heard by a different judge.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber
11 August 2026