Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004645
First-tier Tribunal No: PA 54033 2023
LP 06555 2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27th March 2026
Before

DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

Between

NS
(ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms. Malhotra, counsel
For the Respondent: Mr. J Nappey, Senior Home Office Presenting Officer

Heard at Field House in person on 25 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. This is an appeal by the Appellant, NS, against the decision of First-tier Tribunal Judge Lucas (‘the judge’) who dismissed the Appellant’s appeal by a determination dated 23 January 2025 following a hearing which took place on 21 January 2025. That appeal challenged the respondent’s decision to refuse the appellant’s claim for asylum and humanitarian protection dated 15 June 2023.
2. First-tier Tribunal Judge Hollings-Tennant granted permission to appeal on 2 October 2025 on all grounds. On 14 October 2025 UTJ Sheridan made an anonymity order. I maintain that order given the nature of the appellant’s claim.
3. The hearing took place before me in person on 25 March 2026. At the start of the hearing I confirmed with the parties that I had all the relevant documents. I then heard submissions from Ms. Malhotra for the Appellant and from Mr. Nappey for the respondent. I received a composite bundle running to 118 pages in advance of the hearing. I reserved my decision, which I now give.
Decision of the First-tier Tribunal
4. In order to understand the challenges advanced by the appellant to the judge’s decision, it is necessary to summarise that decision in a little detail. The judge began his judgment (at [1]-[4]) by setting out the appellant’s appeal and the Respondent’s decision of 15 June 2023. The judge recorded that the appellant appeared in person at the hearing without representation or an interpreter but supported by two friends. The appellant submitted 23 pages of material to the judge. The appellant had not requested an interpreter. The judge stated that the appellant and his supporters requested that the appeal be decided on the basis of the papers and that they did so.
5. The judge then set out the background to the appellant’s claim (at [5]-[6]). This included the appellant’s immigration history. Having entered the UK in 2006, he claimed asylum on 11 June 2006. This claim was refused and certified as clearly unfounded on 29 February 2006. He made two sets of further submissions, both of which were refused, in 2012 and 2021. His current claim was lodged on 10 January 2023. The basis of his claim is that he is at risk from his wife’s family who were, on his account, powerful. His father in law threatened to kill him and he was beaten. He was arrested in Jalandhar in 2003 and was charged with attempted murder. The judge recorded that the appellant was acquitted, (although there is a dispute about this, which I will set out further below). The appellant claimed that he was forced to sign a confession and that there is an open First Incident Report (‘FIR’) lodged against him and that he would be imprisoned and arrested on return to India. The judge summarised the Respondent’s case at [7]-[18], providing a precis of the refusal letter of 15 June 2023 and review of 25 March 2024, itself referring to earlier refusal decisions of 29 June 2006 and from 2012. The Respondent concluded that there was no evidence that the appellant was at risk from his wife’s family, that they have influence and would be able to locate him, nor that there was evidence of continuing risk. State protection and internal relocation are open to him. His private life could not succeed on article 8 grounds within or outside the immigration rules. The judge recorded the appellant’s case at [19]-[24], that the events he relies on occurred more than 20 years ago and so there is no record of his assertions. He reiterates that his fears are and remain genuine. He has lived in the UK for 18 years and has submitted medical records and letters of support. As to the course of the hearing, the judge recorded (at [25]-[27]) that the appellant asked for the case to be considered on the papers and did not add anything further and the Respondent relied on the refusal decision.
6. The judge set out his findings (at [28]-[47]). Although running to 20 short paragraphs, these findings occupy only one page of the judge’s decision. The judge found that burden of proof is on the Appellant to show a real risk of persecution or other ill treatment. The judge found that the appellant’s claim made in 2006 had been refused and that his current claim was a further attempt to rely on a claim refused 19 years ago which was not supported by evidence, then or now. The judge found the appellant’s fears and claims to be wholly unsubstantiated and unsupported by any independent evidence that he was attacked or prosecuted. Equally, there is no evidence to show his wife’s family have influence or that he has been of adverse interest since leaving India. There is no evidence of insufficiency of state protection or that he could not relocate internally. He has moved to the UK and has remained here as a matter of choice. His fears are subjective and are not objectively justified. His asylum claim and any article 2 or 3 ECHR claim was rejected. The judge found there could be no realistic article 8 claim, his status in the UK has been precarious since 2006. There is a public interest in his removal, he has been receiving medical treatment here and could receive treatment in India. He does not qualify for Humanitarian Protection. The appeal was therefore dismissed on all grounds.
Grounds of Appeal
7. The appellant advances three central grounds of appeal:
i. The judge failed to adequately assess risk on return including threat to the appellant from his in-laws and did not apply the reasonable likelihood standard to evaluating future risk.
ii. The judge erred in law by misapplying the statutory framework for asylum and humanitarian protection in section 32(2)(a) of the Nationality and Borders Act 2022 (‘NABA 2022’), requiring an assessment of whether there is a convention reason on the balance of probabilities and whether there is a reasonable likelihood of persecution on return (to the lower standard), the failure to do this was an error of law.
iii. The judge failed to properly assess the appellant’s credibility, including his explanations for the absence of documents from India. The judge failed to apply the reasonable degree of likelihood standard, and disregarded matters relevant to article 8 ECHR
8. These grounds were developed in a number of ways in the written grounds of appeal which Ms. Malhotra adopted at the appeal hearing, which I set out in greater detail below. The grounds of appeal, which were not drafted by Ms. Malhotra, were discursive and in places diffuse. They set out the appellant’s background, the grounds I have set out above, detailed submissions on each ground, a section entitled ‘Legal Arguments and Precedent’ setting out further submissions, arguments in relation to the appellant’s health, prison conditions in India and on his conduct whilst in the UK. This led the judge who granted permission to appeal to treat them as amounting to 8 separate grounds. Whilst neither party’s submissions exactly mirrored the structure of the grounds of appeal, I was satisfied by the end of the hearing that I had understood all of the points that each side wished to make and that they had each had the opportunity to make all of those points within the structure of the overarching grounds of appeal I have summarised above.
The Law
9. The Appeal comes before the Upper Tribunal to decide first whether there is a material error of law in the judge’s decision, and if it does, to re-make the decision or to remit the appeal to the First-tier Tribunal to do so.
10. As the appellant seeks to overturn the judge’s findings on issues in controversy between the parties, the approach I should take is set out by the Court of Appeal in Yalcin v SSHD [2024] EWCA Civ 74; [2024] 1 WLR 1626, by Underhill LJ at [50]-[51]:
50. … I should recapitulate the approach that should be taken in considering whether the FTT made an error of law. At para. 72 of his judgment in HA (Iraq) (but with reference to the appeal in AA (Nigeria)) Lord Hamblen said:
"It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. 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 Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) 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 Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) 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 First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope."
51. Mr Malik relied on that passage but added some further points by way of amplification. The only one that I need mention is that in AA (Nigeria)1 in this Court Popplewell LJ said, at para. 34:
"Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so."
The submissions of the Parties
11. Ms. Malhotra adopted the written grounds of appeal and submitted as follows:
a. On article 8 ECHR - there is no balance sheet and no engagement with the length of the appellant’s residence and no grappling with the article 8 issues generally and more broadly. Section 117B of the Nationality Immigration and Asylum Act 2002 has been considered but there is an absence of reasoning where the Judge ought to have engaged with the appellant’s medical conditions and his private life that would have been established over a lengthy period. Even if it is likely that the private life claim would not have succeeded because it received little weight, the judge should have said this.
b. As to corroborative evidence, the judge’s findings at [28]-[47] are cursory. There was evidence in the form of the further submissions statement the appellant provided, (bundle at p.110). there is no acknowledgement that whilst there is no corroborative or external evidence, there is the appellant’s evidence. The judge made a significant error in finding that the appellant was acquitted. On the question of whether this error was material, the judge’s understanding of a key element of the appellant’s case was flawed. His ultimate findings and conclusion on risk was flawed. He believed the appellant was acquitted. There is no explanation as to how he came to that conclusion. The use of the term ‘acquitted’ is a significant material flaw in the overall assessment of risk.
c. Internal relocation is a linked point. The judge rejected this at paragraph 39. Paragraph 40 commenting that the appellant relocated to the UK is a non-sequitur. The judge did not engage with the material before him, if he engaged with it at all. There are no reasoned findings on this issue. The judge could not make a sound decision about relocation, we are speculating about what the judge is thinking, there is no explanation. Relocation to the UK was not relevant.
d. Engaging with the refugee convention: at paragraph 28 the judge dets out the burden and standard of proof. That is clearly wrong. There is a material error of law in failing to find whether NABA 2022 applies, the judge needed to set out the correct law. There is no indication point. As to whether the judge took a more favourable approach to the appellant by not applying NABA 2022, it is not possible to understand what the Judge is thinking. The appellant is entitled to a properly, robustly and soundly reasoned decision, that is not what this decision is. The point is not whether the Judge would have reached the same decision. This infects all of the determination.
e. As to disposal, this case should be remitted to the First-tier Tribunal for a full reconsideration.
12. Mr. Nappey submitted as follows:
a. As to ground 1 and whether the judge mis-record ed that the appellant was acquitted. The judge found the claim wholly unsubstantiated, because he found the entirety of the case not to be made out. There is no material error of law, even if there was an error in finding that the appellant was acquitted. The Judge made the finding that the entirety of the claim was unfounded, so that mis-recording at para 6 was not material at all. The appellant says that he was arrested and he was forced to sign a confession, it is not correct to say he is at risk. There has never been an arrest warrant. The judge correctly recorded the appellant’s case that there is an open FIR.
b. The Legal Framework – if the judge was wrong and this was a further submissions case and not a fresh claim and NABA 2022 applies that does not go in his favour, he would have to show a convention reason on balance. The judge applied the lower risk. The judge didn’t make a clear finding on what is engaged, if NABA 2022 applied it would not favour the appellant. The judge did not say that NABA 2022 applied, the judge applied the lower standard throughout the determination. It does not make a difference whether those provisions applied, the lower standard was applied which benefitted the appellant. That error, if it is an error is no materiality.
c. Ground 3 is parasitic on whether the judge made sufficient findings on risk on return. The judge dealt with this at paragraph 30 and 34, 35, 38. That only arises if the judge made an error on the earlier grounds
d. Was there a convention reason? The respondent accepts that the judge does not engage with this point a lot. At paragraph 42 the judge dismisses the asylum claim. He has considered all the findings from an asylum perspective, if the convention was engaged he does not qualify for asylum. There was no positive basis to find there was a convention reason. The judge considered the case through the perspective of asylum, it goes to materiality.
e. Internal relocation – this goes to risk on return overall. The judge made core findings at paragraph 34 and 36. That goes hand in hand with the judge’s findings on the core of the appellant’s claim. Paragraph 39 follows from that on internal relocation. There is no evidence that the appellant’s wife’s family has influence on a state or nationwide level. The onus is on the appellant to say that he could not do so. The issue of internal relocation is parasitic on whether there were errors beforehand. There is no material error.
f. As to supporting evidence and corroborating evidence – the appellant criticises the judge for a lack of evidence, as to which see the judgment paragraphs 33 and 35-38. The Judge should not be criticised for dealing with the appellant’s case on the basis presented to him. The judge summarised the appellant’s case at paragraphs 19-20 and noted that the appellant did not want to put in further argument or give evidence. At paragraphs 33 and 35-38 the Judge made findings on the matters which were at the heart of the appellant’s claim. The Court of Appeal’s judgment in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216 [74]-[76] sets out the qualification directive. A failure to meet one of the limbs in the directive or rule 339L does not mean corroborative evidence is required, the Court of Appeal held the Home Office guidance was appropriate at [77]. At [86] the Court of Appeal held the absence of corroborative evidence could be of some evidential value, if it could have reasonably been obtained and there is no good reason for not obtaining it. There is a distinction between this case an MAH, there was corroborative evidence in that case, there is not here. This does not assist the appellant, there was no evidence before the judge. The Judge was entitled to take into account the lack of corroborative evidence and took an approach broadly consistent with MAH and to the extent he did not it is not material. There was no evidence from the appellant. There was no evidence about the arrest, FIR or adverse interest from the appellant’s family. He cannot be criticised for making adverse findings on the lack of evidence. He followed what MAH set out, there is no error on that point.
g. The remainder of the grounds focus on the article 8 assessment. The Judge dealt with this shortly at paragraphs 43-45. The judge says the appellant’s immigration status has been precarious since 2006, that is an application of s.117B of the 2002 Act. The judge took into account his use of the NHS. There was incredibly limited evidence on his private life in the UK. There were letters from his friends. Even taking all of this at its highest and conducting a lengthier balance sheet assessment, the conclusion would be the same. The appellant did not make a positive case that article 8 is engaged. The medical evidence is not extensive and says he is taking medication and had a fracture in 2019. This is not an article 3 medical case. The judge had limited evidence on the appellant’s condition. Taken at its highest it does not take the appellant further.

Discussion
13. I have come to the conclusion that the judge’s decision contained material errors of law which mean that it must be set aside. I give reasons for that conclusion below.
14. First, dealing briefly with ground one, it was accepted by the parties that the judge erred in stating at [6] of his determination that the appellant’s case was that he had been acquitted of a charge of attempted murder. The appellant’s case was in fact that he had been charged and that that charge remained outstanding. It is well established as a matter of law that error of fact is capable of amounting to an error of law (see E v Secretary of State for Home Department [2004] EWCA Civ 49). In this case I am not satisfied that that the judge’s error of fact was a material error of law. In broad terms I accept the submissions of the Respondent on this point. The judge rejected the appellant’s claim in its entirety. In those circumstances, I accept that whether or not there was an error of fact on the issue of whether the appellant was acquitted is immaterial in circumstances where the judge rejected the totality of the appellant’s account. To put it another way, had the judge correctly recorded the appellant’s account, it would not have led to a different outcome given the judge’s overall decision on the credibility of the core of the appellant’s claim. I reject ground 1.
15. Second, I accept that the judge did not correctly apply section 32 of the Nationality and Border Act 2022 in their judgment. There is no section setting out the law they applied, the provisions of that section and the two stage test it contains are not referred to anywhere in the judgment. Nor is there any explanation as to whether the judge considered that that section should apply or not. There is a superficial attraction to the Respondent’s submission that this error is not material because the judge applied a test that was more favourable to the appellant than might otherwise have been applied. However, there is simply no indication that the judge applied the correct law in those sections in their findings at [28]-[47]. I accept the appellant’s submission that he is entitled to a properly, robustly and soundly reasoned decision, not whether the judge would inevitably have reached the same decision whatever approach was taken, legally correct or not. I also accept that this error means that the judge’s conclusions on the issues of the risk the appellant faces on return, whether he could relocate internally and whether there would be sufficiency of protection are also infected by this material error of law and failure to set out the correct test as a matter of law.
16. The well-known case of Budathoki (reasons for decision) [2014] UKUT 00341 (IAC) is authority for the proposition that judges must give reasons for preferring one side’s case to the other so that the parties can understand why they have won or lost. I am unable to say that paragraphs 28-47 of the judge’s determination meet that test for these reasons.
17. Third, as to the judge’s approach to the appellant’s credibility, I have some sympathy with the judge who was faced with an unrepresented litigant, who had not prepared a witness statement, although they did provide documents explaining the basis for their claim, who did not give evidence and who relied on the documents submitted. However, I also note that the appellant was not represented and did not have an interpreter at the hearing before the judge. It is not clear to me the extent to which the judge explained to the appellant the potential effect on his credibility that could flow from his not giving evidence or advancing any submissions in support of his appeal. Notwithstanding these reservations, I do not consider that the overall approach the judge took to the appellant’s credibility and a lack of corroboration of that account in those circumstances was wrong. However, this issue is academic in circumstances given the error of law I have found is made out in relation to ground 2.
18. Fourth, I do not consider the same can be said of the judge’s approach to article 8 ECHR. There was simply no evidence that the judge conducted a balancing exercise or gave any real consideration to whether the appellant could succeed on this basis within or outside of the Immigration Rules. The reference to the appellant’s status in the UK being precarious was an oblique reference to section 117B of the Nationality Immigration and Asylum Act 2002 but I do not consider that this shows that a proper balancing exercise was conducted.
19. Fifth, whilst it appears unlikely that the appellant’s medical condition on its own could found a successful article 8 ECHR claim, the appellant was entitled to have that issue considered as part of a properly conducted balancing exercise. The judge’s judgment does not show that this exercise was conducted properly. I consider that the judge’s approach to article 8 ECHR amounts to a further material error of law in their judgment.
20. For all of these reasons I conclude that the judge’s decision did contain material errors of law. I reject ground 1 but I find that ground 2 (in its entirety) and ground 3 (insofar as it relates to article 8 ECHR and the appellant’s health condition) are made out. I set the judge’s determination aside.
Remit or remake?
21. The respondent submitted that if I found a material error of law that the matter could be retained in the Upper Tribunal dependent on the extent of the dispute between the parties over the facts. Ms. Malhotra submitted that the case should be remitted to the First-tier Tribunal for a fresh appeal hearing.
22. In those circumstances, I apply part 3 of the Practice Directions of the Immigration and Asylum Chambers of the FTT and the UT, as amended on 18 December 2018 and the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512. In considering what fairness demands, I bear in mind that there will be a need for full fact finding on the appellant’s protection claim and article 8 ECHR and that retaining the case in the Upper Tribunal deprives the appellant the opportunity of taking advantage of the two tier appeals process. Accordingly, I conclude that the case should be remitted to the First-tier Tribunal.
23. It follows that the appellant’s appeal against the decision of the judge succeeds and I set it aside, finding that it contains material errors of law.
Notice of Decision
24. The First-tier Tribunal’s decision involved the making of a material error of law.
25. The appeal is remitted to the First-tier Tribunal for re-making with no findings preserved, to be heard by a judge of that Tribunal other than Judge Lucas.

D Sternberg

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 March 2026

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email