Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004203

First-tier Tribunal No: PA/67193/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16th February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

RH (Iran)
(Anonymity Order made)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Winter, instructed by Latta & Co Solicitors
For the Respondent: Mr D Simpson, Senior Home Office Presenting Officer

Heard at Field House on 30 January 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

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. The Appellant seeks to challenge the dismissal of his appeal by First-tier Judge (FTJ) Fox in a determination promulgated on 13 July 2025 in Glasgow. Permission was refused by FTJ Hamilton on 21 August 2025. After renewal of the application, permission was granted on all grounds by Upper Tribunal Judge McWilliam in a decision dated 8 October 2025. UTJ McWilliam observed that “Ground 1 is arguable. At [42] the judge arguably attached weight to the appellant’s failure to make a claim in a safe third country while at [52] the judge said that s.8(4) of the 2004 Act should not apply because of the appellant’s age… there is less substance in the remaining limbs of ground 1 and ground 2; however, I grant permission on all grounds”.

2. Albeit late, there was a 556-page Composite Bundle served ahead of the error of law hearing by the solicitors representing the Appellant – page references in this determination are in the form [CB: XX], denoting [Composite Bundle: PDF page finder]. There was a Rule 24 reply by the Respondent dated 27 October 2025. The Appellant’s solicitors had sought adjournment on 29 January 2026, an application which was refused by the duty judge and which was not renewed before. Mr Winter, who appeared remotely in the hybrid hearing, confirmed that he was content to proceed. He also served an authorities’ bundle on the day of the hearing.

3. By way of background, as of the date of his FTT appeal the Appellant was a 20-year-old Iranian national of Kurdish ethnicity. He claimed asylum in the UK on 23 May 2022. It was accepted that he left Iran as a child, aged 17. His account was that he had fled Iran owing to risk of persecution by the authorities following an incident in which he and his uncle had been caught working as smugglers – “kolbars”. The Appellant claimed that he had escaped but he believed that his detained uncle gave his name to the authorities, his house had been searched subsequently and there was a risk of reprisals.

4. FTJ Fox did not find the past account credible and, further, rejected a sur place claim advanced on the basis of claimed political activities in the UK since arrival.

The renewed grounds of appeal

5. The renewed grounds of appeal (undated) [CB: 24] were diffuse in structure, with a number of strands subsumed within “two” main grounds of appeal. “Ground 1” was headed “activities in Iran” and had eight roman numeral sub-grounds. “Ground 2” was headed “sur place political activity” and had two sub-grounds/strands.

6. I encouraged Mr Winter to cluster the multiple strands of Ground 1 into intelligible themes. On my reading, Ground 1(i), (ii), (iv), (v) and (vi) were all aspects of what might be characterised as the FTJ’s approach to the “plausibility” of the Appellant’s core account and purported recourse to impermissible or irrational speculation about, inter alia, what might or might not be “expected” of the Iranian authorities or the Appellant’s uncle in response to being apprehended.

7. Ground 1(iii) and (vii) pleaded procedural unfairness.

8. Ground 1(viii) raised a discrete argument about adverse credibility and s.8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

9. Ground 2(i) turns on the FTT’s approach to the issue of the Appellant’s sur place activity in the UK and whether, even if not genuine, such activities would generate risk.

10. Ground 2(ii), while under the heading “sur place activity” is in fact an argument relating to the FTJ’s failure to take account of a risk factor on return: namely that the Appellant would be returning as someone who had previously engaged in activity as a cross-border smuggler, the relevance of which is highlighted by the Home Office’s Country Policy Information Note on “Iran: Smugglers”, dated February 2022, which was relied upon by the Appellant in the bundle below [CB: 281] and/or the FTJ failed to make a finding on whether the smuggling element of the Appellant’s account had at least been accepted, notwithstanding other elements plainly had not been.

Submissions

11. Mr Winter, on behalf of the Appellant, argued that each of the pleaded grounds (or rather, roman numeral sub-grounds) had strong merits. But he focused on the flawed evidential foundation of the FTJ’s scepticism regarding the Appellant’s account of events in Iran, allied to the failure to follow through the necessary implications of the Kolbar/smuggler issue when applying the Country Guidance case of HB (Kurds) Iran (illegal exit: failed asylum seeker) CG [2018] UKUT 430 (IAC).

12. Further, Mr Winter framed the s.8(4) adverse credibility issues as follows: at paragraph 52 of the determination, FTJ Fox expressly stated that “noting the Appellant’s age, I am satisfied that the provisions of Section 8 of the Asylum and Immigration (Treatment of Claimants etc.,) Act 2004 should not apply against his credibility”. The Secretary of State had also adopted that approach in her refusal letter. And yet at paragraphs 41 and 42, the Appellant’s failure to claim asylum in a safe country is nonetheless fully ventilated and adverse conclusions are drawn – with no mention of the Appellant’s age. This, Mr Winter argued, constituted an internal inconsistency of approach: either the FTJ’s own rationale (the Appellant being a minor at the time) for not applying s.8(4) stood or it did not: but expressly citing the fact of the Appellant being a child when he was in France as a mitigating reason was at odds with the actual approach taken elsewhere in the determination. Mr Winter’s “primary” position was that the s.8(4) error alone tainted the FTJ’s approach to credibility or, in the alternative, it did so in conjunction with the errors identified in one or more of the other sub-grounds relating to plausibility of the account in light of all the evidence.

13. Mr Simpson, on behalf of the Secretary of State, argued that the determination provided full and rational reasons for rejecting the credibility of the Appellant, that the FTJ had identified multiple reasons for disbelieving core elements of the account, that there had been no procedural unfairness in any respect and, finally, that – outside the strictures of s.8(4) – the FTJ was still entitled to examine the parts of the Appellant’s evidence relating to the journey to the UK, including the period in France, and fold it into his overall assessment.

Conclusions

14. In my view, a fundamental issue in the First-tier determination is the contradictory approach taken to adverse credibility and s.8 of the 2004 Act, which reads:

8 Claimant’s credibility

(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.

…

(4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country.

15. FTJ Fox chose, at paragraph 52, to not apply s.8(4) for the express reason that the Appellant had been a child at the time he was in France. In other words, the “failure” to claim asylum in France would not be mandatorily to be taken as a consideration damaging to the Appellant’s credibility. The FTJ was not bound to take that step. The statute does not distinguish between adults and children, albeit the Court of Appeal in KA (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 914 [at 25] cautioned that particular care should be taken with respect to s.8(4) when the asylum-seeker was a child in the safe third country.

16. The FTJ could have applied s.8(4) as “damaging” but then adopted a holistic approach thereafter, consistent with JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878. He did not do so. Instead, having reasoned that the Appellant’s age was a mitigating issue, paragraphs 40 to 43 nonetheless proceeded to a comprehensively damaging evaluation of the Appellant’s time in France – with no mention of, or allowance made for, age – and, further, the FTJ tied that issue in part to non-credibility of the asylum claim.

17. This internal tension runs through the paragraphs until the FTJ, at paragraphs 41 & 42, explicitly ends with a conclusion which links the “safe country” failure to the contention that the asylum claim is non-credible:

“41 … I believe this to be a further enhancement to his claim to achieve international protection…

42 He accepts he was in Dunkirk, France. He claims to have been beaten while there also. France is a safe country… he did not claim for [sic] asylum in France and his explanation for not doing so carries little weight. I am not satisfied that his averment to be under the control of an agent was to such an extent as to limit his capacity for freedom of movement and thought. He was, after all, seeking a place of refuge and international protection. He does not appear to be relying on ‘any port in a storm’ but had a particular destination in mind – the UK.”

18. Ground 1(viii) is therefore made out, to the extent that the Appellant argued that “the findings [at 42] of the FTT’s decision are contradictory to the findings [at 52] … and the FTT erred by failing to resolve that contradiction”.

19. This was an FTT appeal which ultimately turned on credibility. The “safe third country” issue was a material component of the FTJ’s own global credibility assessment and, in being tainted by error, the assessment of credibility needs to be revisited as a whole. Each credibility strand is capable of impacting the other(s).

20. In any event, I further conclude that Grounds/paragraphs 1(iv) and (v) also establish an error of law, in that the FTJ has found, at paragraphs 33 to 37, various elements of the Appellant’s account to be implausible without adequate reasoning and/or by speculating without reference to evidence. Those elements relate to the FTJ’s sense of what the Iranian security apparatus is reasonably likely to have done or been capable of doing in the period following the claimed arrest(s), coupled with the anticipated response of an Iranian-Kurdish smuggler (the uncle) when placed under coercion in detention. The FTJ states, for example, at paragraph 33 that the “authorities would have identified [the uncle] as a ringleader/organiser and dispatched a search party to the uncle’s house” [but seemingly did not]; that “if it was the Appellant’s uncle who disclosed the Appellant’s name to the authorities, it seemed strange he would do so quickly” (paragraph 35); that “if they were genuinely interested in finding the Appellant, some form of monitoring would have followed, the easiest would be telephone calls” (paragraph 36).

21. In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223 Keene LJ identified a critical principle when credibility is assessed in an asylum claim:

25 … “The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant's account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. The dangers were well described in an article by Sir Thomas Bingham … from an article in Current Legal Problems …

‘An English judge may have, or think that he has, a shrewd idea of how a Lloyds Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships' engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibl[y] assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even - which may be quite different - in accordance with his concept of what a reasonable man would have done.’”

22. This logic applies, equally, to the often unpredictable machinations of repressive state security forces.

23. While the FTJ, at paragraph 36 does state – in general terms – that “the background material confirms that the Iranian authorities are effective, powerful and well supported in such exercises of monitoring”, that does not provide an adequate basis for the very specific assumptions, indeed speculations, that the FTJ formulates about the Appellant’s claimed experience. As Mr Winter pointed out, there is, further, no regard had to the explanations actually provided by the Appellant in his appeal witness statement [CB: 54].

24. Justice requires that the decision be set aside unless I am satisfied that the error(s) into which the FTT fell were immaterial, in the sense that the error of law could not have made a difference to the outcome. In my view, a lawful consideration of the Appellant’s credibility as regards either the safe third country issue and/or the plausibility of the core past account would have been capable – I put it no higher than that – of leading to a different outcome.

25. In light of my findings on these grounds, I do not consider it proportionate to give a full determination on each of the other grounds. In particular, the issue of sur place activity – and whether or not it was pursued in good faith – and the issue of risk factors on return necessarily fall to be revisited consequent to the global reassessment of credibility, according to law, allied to consideration of the Country Guidance in HB.

Notice of Decision

The decision of the First-tier Tribunal, which dismissed the appeal, is set aside, and the case is remitted to the FTT (IAC) for a de novo hearing, to be heard by any Judge save for FTJ Fox.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 February 2026