Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004519
First-tier Tribunal No: PA/52283/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 2nd of June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

RAH
(Anonymity Order made)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Eaton, instructed by Pristine Law Solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Heard at Field House on 13 May 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 claims to be a paperless Kurd from Syria. The Respondent’s position is that he is an Iraq national owing to a visa application he appears to have made to the United States in 2018 using – he says – a false Iraqi document. That visa application failed but the Appellant’s biometrics appear to have been retained and then shared with the Respondent via the Secure Real-Time Platform (SRTP).
2. This dispute over nationality was the critical issue when the appeal was heard by First-tier Judge Boyes at Newport on 13 February 2025. The FTJ dismissed the appeal in a determination promulgated on 15 February 2025, concluding [at 32] that “in the absence of any credible information as to the [Iraqi] passport, the only conclusion I can reach is that I do not know if the appellant is a national of Iraq but I am not satisfied that he is a national of Syria”. FTJ Boyes himself refused permission to appeal in a decision dated 23 March 2025.
3. Following renewal, permission was granted by Upper Tribunal Judge Owens in a decision sealed on 29 December 2025. UTJ Owens included the observation that “it is arguable that the judge failed to apply to correct burden of proof in respect of the applicant’s nationality”.
Preliminary issues and Respondent’s concession
4. Mr Eaton, appearing on behalf of the Appellant, clarified the grounds of appeal which had hitherto been framed in a somewhat diffuse way by previous Counsel (including sub-grounds within a series of headline grounds labelled “A”, “B” and “C”). Ground B included the contention that there may be a lower standard of proof than “reasonable likelihood” in establishing nationality in asylum cases – something that Mr Eaton (in my view, rightly) did not pursue. Ground C was also not advanced given that Article 8 ECHR had not been pleaded in the ASA in the First-tier nor otherwise argued at the hearing.
5. The heart of the error of law hearing, therefore, related to Ground A and whether or not the FTJ had rationally applied himself, first to the Respondent’s positive contention that the Appellant was Iraqi and then, in turn, to the evidence as to whether it was reasonably likely the Appellant was a paperless/”maktoum” Syrian Kurd, as claimed.
6. Ms Everett, Senior Home Office Presenting Officer, acknowledged that there was a material error of law with respect to Ground A, notwithstanding a Rule 24 reply which had sought to defend the determination. I was grateful for her pragmatism and realism. I also consider that she had not been assisted prior to the hearing by the maximalist and often confusing renewal grounds.
7. For the avoidance of doubt, I agree that there as a material error of law in the FTJ’s approach to both the analytical framework to be applied to the question of disputed nationality and to the evaluation of the evidence presented by the Appellant, which ought to have been – and was not - considered in the round, in tandem with the compellingly detailed asylum interview, the country evidence on Maktoum Kurds and all other relevant evidence.
8. Since there has been a concession by the Respondent, it is not proportionate for this determination to provide a full exploration of the legal issues which will fall for reconsideration on the next occasion. But I will, to assist the Tribunal, focus on the core of what went wrong last time in order to minimise any risk of a repeat.
9. The Secretary of State had made an assertion that the Appellant was Iraqi, as expressly noted by the FTJ at paragraphs 9 and 22 of the determination. This had important implications for the appeal and for the reasoning required of the FTJ.
10. In an appeal in which the Home Office explicitly contends that someone is a different nationality (as distinct from a mere denial that they are the nationality claimed or that it is “unknown”), then there first must be consideration of whether the Respondent can satisfy the Tribunal on the balance of probabilities of that alternative nationality. This is clearly expressed in the Respondent’s own guidance, “Nationality: disputed, unknown and other cases”, Version 7.0, dated 1 November 2019, which states: “If the Home Office considers the claimant to be a specific nationality other than that claimed, the burden of proof rests with the Home Office to prove the assertion according to the balance of probabilities standard (this is a higher threshold than the lower standard of proof – reasonable likelihood - mentioned above). The test is met if it is more likely than not that the claimant holds the asserted nationality.”
11. There is no indication from the determination that the FTJ engaged in such an exercise; nor, having not reached a view on Iraqi nationality (on balance of probabilities), did he then integrate this into his evaluation of whether or not the Appellant was reasonably likely to be from Syria, including consideration of the Appellant’s contention that the Iraqi document used in 2018 was not a genuine document, was not in his real name (as evidenced) and had not led to the issuance of a visa.
12. Critically, the Appellant had also submitted evidence of his recent attempts to extract further information from the relevant authorities in the United States by way of representations and a Freedom of Information request; while also, in tandem, on multiple occasions seeking Directions from the FTT for the the Secretary of State to be directed to conduct her own checks as to the document’s falsity (or veracity). The FTJ’s approach to that evidence was to conclude, at paragraph 29, that “the US material is not relevant”. I do not consider that to be correct.
13. This procedure, and consideration of evidence, was at least capable of leading to a different outcome on nationality, not least in light of the Respondent’s position that, were the Appellant to establish that it was reasonably likely he is Kurdish Syrian (this is a pre-NABA 2022 claim), then he would ipso facto succeed in his protection claim (see paragraph 7(b) of the determination).
14. Finally, as to the attempt to compel the Respondent to make further checks with either the US or Iraqi authorities, it will be a matter for the Appellant how best to pursue and obtain such Directions. I am somewhat sceptical that this is a scenario in which PJ (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1011 [at 29-31] can be said to apply unproblematically. The Appellant is not asserting that he has a genuine document whose veracity the Respondent can easily check. Rather, he is contending that he previously used a false document which the Respondent (and Tribunal) ought not to deem genuine. There may or may not be further information held by other authorities.
Conclusions and disposal
15. I invited submissions from the representatives on whether the appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal. Both representatives took the view that it should remit de novo.
16. I have had regard to Section 7 of the “Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal” (SPT Ryder, 11 June 2018), Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.
17. Remittal is not the usual course but it is appropriate in the circumstances of this appeal, having regard to the nature and extent of the factual findings and the issues that will be in dispute.
Notice of Decision
The decision of the First-tier Tribunal, which dismissed the appeal, is set aside and the appeal is remitted to the First-Tier Tribunal to be heard afresh.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 May 2026