Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004420
First-tier Tribunal No: PA/03324/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th May 2026

Before

UPPER TRIBUNAL JUDGE PINDER

Between

O S M
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Islam, Counsel instructed by Fountain Solicitors.
For the Respondent: Mr Lawson, Senior Presenting Officer.

Heard at Birmingham Civil Justice Centre on 10 March 2026

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

Introduction

1. The Appellant has permission to appeal against the decision of First-tier Tribunal Judge Freer (‘the FtT’ / ‘the Judge’) dated 9th April 2025, in which the Judge dismissed the Appellant’s protection and human rights appeal.

2. I have maintained the anonymity order in respect of the Appellant. I consider that on the specific facts of this appeal, the maintenance of the integrity of the United Kingdom’s immigration system and the Appellant being a vulnerable person as a result, inter alia, of his health and having made a claim for international protection, are such that an anonymity order is a justified derogation from the principle of open justice.

Factual and procedural background

3. The Appellant was not legally represented in his appeal in the FtT and he also prepared the grounds of appeal to this Tribunal against the Judge’s decision himself, without any legal representation.

4. The Appellant left Syria in 2015 and he arrived in the UK in 2021 aged 16 ½ years old. The Appellant’s age was at first disputed by the Respondent on the Appellant’s arrival but following an age assessment by the relevant local authority, the Appellant’s claimed age was accepted.

5. The Appellant is of Kurdish ethnicity. The Respondent did not accept in her decision of 25th September 2023 that the Appellant originated from Syria. The Appellant stated that he belonged to the Kocher tribe and was undocumented. The Appellant speaks Kurdish Kurmanji. The Respondent thought it more likely that the Appellant stemmed from either Turkey or Iraq, and she noted that the Appellant had spent significant periods living in both of those countries. On the Appellant’s case, he lived in Iraq for a period of three years, because he was held there against his will and in Turkey for a period of 18 months before he travelled to Europe ultimately arriving in the UK in 2021.

The decision of the First-tier Tribunal

6. The Judge recorded the Appellant as a vulnerable witness. The reasons for this appear to be that the Appellant was under the age of 18 years old when he arrived in the UK, that he appears to be illiterate in Kurdish and without other languages, and that he states to have problems with his memory. The Judge also acknowledged that his account contained clearly traumatic details. The Judge stated at [7] that he would apply the relevant Presidential Guidance.

7. The Judge found at [27] that the Appellant is very likely a Syrian Kurd and the Judge rejected the Respondent’s case on the issue of disputed nationality. The Judge did not however accept the Appellant’s account of what happened to him after he left his family in Syria, namely that he was held against his will by ISIS. The Judge stated as follows for his reasons:

“28. (…) while he was still very young, he has completely failed to account for the three years spent in captivity. Mr Evans has listed not a few but many discrepancies which may no doubt be due to a poor memory (or his young age) but which also might reflect the script dictated to him by the agent who took him across Europe after payment by his uncle. The Appellant was given the chance to clarify the issues at the hearing. One would expect more consistency and accurate detail with questions about more recent events.

29. An assessment of the cost of feeding him and dozens of other captives over three years suggests that it was extraordinarily generous. No explanation has been given as to why ISIS or some similar Arab group would have done this. He said nothing was given in return to the captors. The Appellant was not a high-level prisoner. This is not a credible account, given the extraordinary costs and tying down of people to work as captors for no apparent benefit to the armed group, not least because communication seems to have been well-nigh impossible, so either the period of captivity was far shorter than claimed or it never occurred. Further, the Court has no evidence of any psychological harm as might very well be expected from such a long captivity. Those familiar with bail applications will understand the time scales that trigger harm. It is very likely that he feared only the YPG/SDF; he avoided them, and was not taken captive.”

8. The Judge went on at [30] to consider that in any event, ISIS had been defeated in Syria and that whilst it is possible that the Appellant once faced such a threat, the Judge considered at [32] that the Appellant was now an adult and there was no evidence produced to show that forcible recruitment of Kurds to the Kurdish forces was a continuing practice in 2025.

9. The Judge also found at [34] that the Appellant could internally relocate away from the Turkish border to another part of Syria, except for the dangerous Deir Ez-Zor Governorate in the south of Syria. At [35], the Judge added that the risks claimed did not exist inside Turkey, where the Appellant “faces no persecution there, only ethnic discrimination which does not breach the Refugee Convention. (Thus, t)he Appellant may wish to seek a voluntary return to Istanbul, to rejoin his uncle”. The Judge also stated that the Respondent may assist with resettlement costs if he so applies.

10. Accordingly, the Judge dismissed the Appellant’s protection and human rights appeal under the Refugee Convention, also dismissing on humanitarian protection and ECHR grounds.

The Appellant’s appeal to the Upper Tribunal

11. In support of his appeal, the Appellant made reference to his health and vulnerabilities and that these made him vulnerable to return to Syria.

12. The Appellant was granted permission to appeal against the Judge’s decision by the FtT with the following observations made:

“4. (…T)he judge made findings about the appellant’s vulnerability including in relation to his poor memory; his illiteracy in his first language; his lack of other languages; and his low level of education. There is no evidence that the judge took these into account in any meaningful way when considering whether the appellant could reasonably and safely relocate within Syria.

5. It is also arguable that the judge erred in finding that the appellant could seek voluntary return to Turkey in order to be with his uncle there in light of his finding that the appellant is a Syrian national and in the absence of any evidence that the appellant would be admitted to Turkey.

6. The grounds of appeal disclose an arguable error of law.”

13. In response, the Respondent filed and served a reply pursuant to Rule 24 of the Procedure Rules, defending the Judge’s decision.

14. I raised with both parties at the outset of the hearing whether they agreed that the second issue observed upon by the FtT in the grant of permission to appeal was “Robinson-obvious”. This was because it had not been raised by the Appellant but the arguable error identified flowed from the Judge’s finding that the Appellant originated from Syria, and not Turkey, and a plain application of the Refugee Convention. Both parties agreed.

15. At the hearing, both parties’ advocates made further brief oral submissions. I have addressed the parties’ respective written pleadings and oral submissions in the section below when setting out my analysis and conclusions. At the end of the hearing, I was able to confirm with both parties that I was satisfied that the Judge had made material errors of law and that the FtT’s decision would be set aside. I gave brief reasons for my decision orally, which are replicated in more detail further below in the next section of my decision. I also confirmed with both parties thereafter that it was appropriate for the appeal to be remitted to the FtT for hearing afresh in light of the errors pursuant to the first issue considered below. Both parties agreed with this proposed remittal.

Analysis and conclusions

16. As identified by the grant of permission and the Appellant in the grounds of appeal, the Appellant has a number of vulnerabilities, which were accepted and recorded as such by the Judge at [7], as summarised above. The Judge’s self-direction was therefore entirely appropriate.

17. Mr Islam submitted however that those same vulnerabilities were not considered at all by the Judge when the Judge assessed the Appellant’s evidence, the issue of risk(s) on return and the Appellant’s ability to internally relocate. Mr Islam argued that the Presidential Guidance on vulnerable witnesses/appellants had not been applied by the Judge, meaningfully or at all, despite the direction to do so at [7]. Instead, Mr Islam submitted that the Judge had speculated as to why ISIS would keep the Appellant captive for the time that he had claimed, the purpose of this, and their capacity to do so. The Judge should have applied the Presidential Guidance by assessing the impact, if any, of the Appellant’s vulnerabilities on his account and evidence and the Judge had entirely failed to do so.

18. Mr Islam also submitted that it appears from the determination that the Judge conducted his own research. Further, that it appeared that this had been done without raising the contents of that research, and any adverse points arising from the same in particular, with either party. This was also in breach of procedural fairness and tied in, in particular, with the Appellant’s vulnerabilities.

19. In response, Mr Lawson acknowledged that the Appellant had been accepted as a vulnerable witness by the Judge but Mr Lawson submitted that his vulnerabilities, in themselves, did not place the Appellant at risk on return. The relevant issue was whether the harm and risks that caused the Appellant to be displaced remain relevant today and the Judge found, in the alternative, that ISIS, or other similar insurgent groups, are no longer a threat to the Appellant. Mr Lawson did however note that the crux of the issues in this appeal concerned the Judge’s findings at [34], where the Judge assessed the Appellant’s ability to return and if necessary, internally relocate within Syria. Mr Lawson did also accept that the Appellant may experience difficulties as a result of his vulnerabilities. On the other hand, the Appellant had been able to function thus far. Lastly, Mr Lawson accepted that the Judge’s assessment at [29] was somewhat speculative.

20. Having considered the Judge’s decision very carefully with anxious scrutiny, with the Appellant unrepresented before the FtT, I am entirely satisfied that the Judge has made a number of material errors of law.

21. Key to this matter, as both parties agree, are what needed to flow from the Judge’s acceptance that the Appellant had multiple vulnerabilities. Those vulnerabilities are multiple and of a different nature, namely the Appellant’s minority when he came to the UK and therefore even lower relevant ages when experiencing the claimed events, together with his low level of education and literacy and lastly, matters concerning his health. The Judge very clearly recorded all three of those aspects of the Appellant’s vulnerabilities at [7] but he did not, go on to consider those and how these may impact or relate to the Appellant’s evidence in support of his appeal.

22. In particular, I have already extracted and cited at para 7 above what the Judge stated at [28] of his decision in the context of the Judge considering the Presenting Officer’s submissions on discrepancies in the Appellant's account. The last sentence of [28] is not in any way reflective of a Judge considering whether or not, an appellant’s vulnerabilities have impacted their ability to provide their account or evidence with the “expected” level of consistency and accurate detail. The Presidential Guidance is clear: once an appellant or a witness has been recognised as vulnerable, their evidence needs to be assessed with that in mind. At para 10.3 the following is stated in the Guidance on ‘assessing evidence’:

“10.3 Assessing evidence
Take account of potentially corroborative evidence
Be aware:
i. Children often do not provide as much detail as adults in recalling experiences and may often manifest their fears differently from adults;
ii. Some forms of disability cause or result in impaired memory;
iii. The order and manner in which evidence is given may be affected by mental, psychological or emotional trauma or disability;
iv. Comprehension of questioning may have been impaired.”

23. The same or similar is also recorded in detail in the Equal Treatment Bench Book with chapter 1 addressing litigants-in-person and chapter 2 children, young people and vulnerable adults.

24. The Presidential Guidance was also considered in detail recently by the Court of Appeal in Khan v Secretary of State for the Home Department [2026] EWCA Civ 148 with Lewis LJ stating as follows at [38] of his judgment:

“(…) The language of the Guidance Note is consistent with it giving guidance to assist a tribunal to ensure that it is dealing with cases fairly and justly. Its title is "Guidance Note". The first line of the first paragraph refers to it as "guidance". It notes that the guidance, although specific to particular groups, "is also a reminder of good judgecraft". That is reinforced by Annex A to the Guidance Note which asks why guidance is necessary. It notes that effective communication is the bedrock of the legal process: everyone needs to understand and be understood "or the process of law will be seriously impeded" (paragraph 16). Paragraph 17 refers to "All possible steps" being taken to assist a vulnerable adult "to understand and participate in the proceedings". Paragraph 18 points out documents, processes and procedures which fail to take account of vulnerability "may compromise the quality of the evidence produced". The whole tenor of the Guidance Note, therefore, is directed towards ensuring that the proceedings before First-tier Tribunals enable individuals to participate effectively so that their evidence is properly understood and properly assessed. (…)”

25. In an earlier judgment of the Court of Appeal - AM (Afghanistan) v Secretary of State for the Home Department (Lord Chancellor intervening) [2017] EWCA Civ1123, [2018] 4 WLR 78 - Ryder LJ also found at [17] of his judgment that the First-tier Tribunal had not properly considered the impact of the claimant's age, vulnerability and the evidence of a significant learning difficulty when the First-tier Tribunal made adverse credibility findings, and rejected the claimant's account of past events because of inconsistency and when dismissing the asylum appeal on that basis. This had led to procedural unfairness.

26. Returning to this appeal, whilst I accept that, pursuant to the Respondent’s submissions both orally and in the Rule 24 response, the issues of the Appellant’s vulnerabilities may not ultimately demonstrate that he is reasonably likely to be at risk on return to Syria, it is nevertheless necessary to make clear findings on the Appellant’s account with his vulnerabilities in mind. This goes to both his evidence on past events claimed and his evidence as to his own ability, based on all relevant circumstances of his and stemming from any relevant country guidance and/or background information, to return to Syria. It is not apparent from the Judge’s findings that any of this was done. The Appellant was 10 years old when he left Syria in 2015 and so was aged between 10 and 13 years old when he says he was held captive by ISIS. In addition to this, it was apparent to the Judge that the Appellant had other vulnerabilities as recorded by the Judge at [7]. Had the Judge assessed the Appellant’s evidence and the country guidance/background evidence, having taken into account the Appellant’s vulnerabilities, there is a real prospect for a different outcome to the appeal being reached.

27. Separately, I am also concerned that the Judge has entered into speculation at [29] and has taken matters into consideration concerning the changing country conditions, which may not have been raised or explored with the parties themselves during the hearing. I am led to this concern from [10] where reference is made to background information having been studied by the Judge prior to the hearing in light of the Respondent’s CPINs having been taken off-line and the Appellant being a litigant-in-person. Whilst the FtT may not have received assistance from either party with regards to the likely country conditions on return, this does not ordinarily permit the Judge to conduct their own research on matters in dispute between the parties, in particular without raising adverse matters with the relevant party in advance of reaching findings. It is not clear to me from the remainder of the Judge’s decision whether the necessary notice was given to the Appellant, who the relevant party for matters concluded by the Judge at [30-[32], [34] and [35].

28. For completeness, and as identified in the grant of permission to appeal, I am also entirely satisfied that the Judge materially erred in law at [35] when he found that the Appellant could return to Turkey – see citation of this passage in the Judge’s decision at para 9 above. The Appellant is not a national of Turkey. That is a fact on the Judge’s own findings. It is correct that the Appellant travelled through Turkey from Syria to the UK but with the Appellant not being a national of Turkey, there was no evidence before the Judge that the Appellant would otherwise be admitted into Turkey from the UK nor that the Respondent would be able to assist him with the same.

29. As referred to briefly above, upon my informing the parties at the end of the hearing that I would be finding material errors of law, the parties were able to confirm their agreed position that the matter needs to be remitted back to the FtT to be heard afresh by a different Judge. I am also of the view that this is appropriate since the material errors of law concerning the Judge’s approach to the Appellant’s vulnerabilities have caused procedural unfairness. In line with the relevant guidance therefore, it would not be appropriate to retain this appeal in the Upper Tribunal.

30. Both parties are also agreed that the Judge’s findings at [25]-[27] on nationality, i.e. that the Appellant stems from Syria and not Turkey, are to be preserved since these are conclusions which are not vitiated by the errors that I have otherwise found. I also note that the Judge’s acceptance that the Appellant is a vulnerable witness also ought to be preserved as all the evidence so far indicates that the Appellant remains so.

31. For the reasons above, I am satisfied that the Appellant’s appeal in this Tribunal should be allowed.

Notice of Decision

32. The decision of the First-tier Tribunal did involve the making of material errors of law and the decision shall be set aside, with the findings at [25]-[27] of that decision preserved and the Appellant continuing to be a vulnerable witness as at the time of the hearing in the Upper Tribunal.

33. The Appellant’s appeal to the Upper Tribunal is allowed and his appeal against the Respondent’s decision of 25th September 2023 shall be remitted to the First-tier Tribunal to be heard afresh by a different Judge.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

06.05.2026