Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004745
First-tier Tribunal No:
PA/71215/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

25th August 2026

Before

The Hon. MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE RUDDICK

Between

DS
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E. Nicholson, instructed by JJ Law Chambers
For the Respondent: Mr T. Lindsay, Senior Home Office Presenting Officer

Heard at Field House on 27 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
(1) Anonymity
1. The First-tier Tribunal (“FtT”) judge (“the Judge”) made an anonymity order on the grounds that “the evidence in this case demonstrates that the publication of this Appellant's name may impact upon his protected rights”. We have not been asked to set that order aside and we consider that it is necessary for it to stand.
(2) Introduction
2. This case concerns how judges should determine whether an appellant has a “well-founded fear of persecution” if the asylum claim was made on or after 28 June 2022 and is therefore governed by the provisions of the Nationality and Borders Act 2022 (“NABA”).
3. Sections 30 to 38 of NABA appear under the heading “Interpretation of Refugee Convention”. Section 32 contains directions to decision-makers about how to decide if a person meets the definition of a refugee found at Article 1A(2) of the Refugee Convention. As amended by the 1967 Protocol, Article 1A(2) defines a refugee as “any person who”:
“(2) … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
4. Section 32 provides that:
“(1) In deciding for the purposes of Article 1(A)(2) of the Refugee Convention whether an asylum seeker’s fear of persecution is well-founded, the following approach is to be taken.
(2) 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.
(See also section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (asylum claims etc: behaviour damaging to claimant’s credibility).)
(3) Subsection (4) applies if the decision-maker finds that—
(a) the asylum seeker has a characteristic mentioned in subsection (2)(a) (or has such a characteristic attributed to them), and
(b) the asylum seeker fears persecution as mentioned in subsection (2)(b).
(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and
(b) they would not be protected as mentioned in section 34.
(5) The determination under subsection (4) must also include a consideration of the matter mentioned in section 35 (internal relocation).”
5. As was recognised in the reported decision of the Upper Tribunal in JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC) at [6], NABA established a “new paradigm” which is different from the one that had governed refugee decision-making for several decades. In JCK, it was recognised that section 32 poses five questions, which are to be answered sequentially, and which we will term:
(1) question 1 (section 32(2)(a));
(2) question 2 (section 32(2)(b));
(3) question 3 (section 32(4)(a));
(4) question 4 (section 32(4)(b)); and
(5) question 5 (section 32(5)).
6. Questions 1 and 2 fall to be determined in what we will call Stage One and Questions 3, 4 and 5 fall to be determined in what we will call Stage Two. (These stages were referred to in JCK as the first and second limbs of section 32.) A different standard of proof applies to questions 1 and 2, as opposed to questions 3, 4 and 5.
7. JCK provided initial guidance on this paradigm shift, with which we agree, save in one respect. However, it has become clear from a number of decisions emanating from the First-tier Tribunal (“the FtT”) that some further guidance is required. As illustrated by the FtT decision in this case and in other cases which have been appealed to the Upper Tribunal, there remains considerable uncertainty about what section 32 requires judges to decide and how.
8. In this particular appeal, the respondent has accepted that the FtT’s decision contained a material error of law and that it must be set aside. We nonetheless invited the parties to make submissions, both orally at the hearing before us and subsequently in writing, about the correct approach in appeals to which NABA applies. We are grateful for their assistance.
9. We add the following to the guidance in JCK
(1) The question asked at section 32(2)(a) of NABA (question 1) is whether, on the balance of probabilities, the claimant has a characteristic which could cause them to fear persecution for one of the five reasons set out in the Refugee Convention. This calls for a specific finding of fact about the asylum seeker. The final sentence of [13] of JCK and, consequently, the final sentence of [3] of the headnote to JCK should no longer be followed.
(2) Question 1 must be answered as at the date of the hearing, but it may often be relevant to consider evidence concerning events alleged to have taken place in the past as well as present circumstances.
(3) NABA does not displace established principles governing the assessment of evidence and does not require a decision-maker to decide whether each alleged material fact, taken in isolation, is more likely than not to be true. The only matters which have to be determined on the balance of probabilities are questions 1 (section 32(2)(a)) and 2 (section 32(2)(b)). When answering each of the five questions set out at sections 32(2)-32(5), the decision-maker must continue to evaluate the evidence in the round, taking all of the evidence taken into account giving it whatever weight it is due
(3) The Legal Framework
(3)(a) The Refugee Convention: Interpretation and Guidance
10. Our task is one of statutory interpretation. It is trite law that legislation giving effect to the United Kingdom's obligations under an international convention should be construed so as to be compatible with that convention. In considering what the Refugee Convention requires, UK courts have recognised that its terms have an autonomous meaning: R v SSHD ex p Adan [2001] 2 AC 477, at 515G-516C; [2000] UKHL 67, per Lord Steyn; Al-Sirri v SSHD [2013] 1 AC 745; [2012] UKSC 54, at [36]. That meaning must be identified by following the principles of treaty interpretation set out in Articles 31-32 of the Vienna Convention on the Law of Treaties (“the Vienna Convention”): Adan, at 516D-517B, per Lord Steyn; EN (Serbia) v SSHD [2010] QB 633; [2009] EWCA Civ 630, at [37]. The starting point is the ordinary meaning of the words used, interpreted in their context and in light of the particular convention’s object and purpose, as provided for in Article 31(1) of the Vienna Convention: Adan at 305B-F, per Lord Lloyd; R v Uxbridge Magistrates’ Court, ex parte Adimi [2001] QB 667; [1999] EWHC Admin 765, at [14]-[15]. As Lord Hope said in ST Eritrea, R (on the application of) v SSHD [2012] 2 AC 135; [2012] UKSC 12, at [30]-[31], “There is no doubt that the [Refugee] Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects”. However, this does not mean going beyond what the parties agreed to, as expressed in the text of the Refugee Convention itself: see also: R (European Roma Rights Centre and Others) v Immigration Officer at Prague Airport and Another (United Nations High Commissioner for Refugees intervening) [2005] 2 AC 1; [2004] UKHL 55, at [18]; Januzi v. SSHD & Ors [2006] 2 AC 426; [2006] UKHL 5, at [4]. Of course, Parliament may enact legislation inconsistent with the UK’s obligations under the Refugee Convention, but, if it does so, it can be expected that it will make that intention clear and unambiguous: R v Asfaw [2008] 1 AC 1061; [2008] UKHL 31, at [25]-[29]; EN (Serbia) at [60]. In this case, Parliament expressed the opposite intention: Explanatory Notes: [318]-[323].
11. The guidance given by the United Nations High Commissioner for Refugees (“the UNHCR”) on the proper interpretation and application of the Refugee Convention should be accorded considerable weight: Asfaw at [13]; Al Sirri at [36]; R (AAA) (Syria) v SSHD [2023] 1 WLR 4433; [2023] UKSC 42, at [65]. However, that guidance is not binding and it cannot impose obligations on States parties that go beyond what the Convention requires: D8 v SSHD [2025] 1 WLR 2900; [2025] EWCA Civ 33, at [63].
12. These principles are of only limited assistance here, because the Refugee Convention is silent as to how States parties should determine whether a particular individual meets the refugee definition. As confirmed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (“the Handbook”):
“the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status. It is therefore left to each Contracting State to establish the procedure that it considers most appropriate, having regard to its particular constitutional and administrative structure.”
13. Nor is there any uniformity of approach amongst States parties on the particular issues of the standard of proof or the method of assessing refugee claims: the UNHCR Note on the Burden and Standard of Proof in Refugee Claims, 16 December 1998, at [2]-[4] (noting that the standard of proof is primarily an Anglo-Saxon concept); Karanakaran v SSHD [2000] 3 All E.R. 449; [2000] EWCA Civ 11 at [59]-[61] (describing the Canadian approach).
14. Nonetheless, there is some general guidance from the UNHCR which is relevant here. The section of the Handbook on “Establishing the Facts” contains the following guidance on “Principles and Methods”, at [196]-[199] and [202]:
“196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. […] if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an application for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.
198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis‑à‑vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.
199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case. …
“202. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding …”
15. None of this guidance directly addresses the standard of proof.
(3)(b) Statutory Interpretation
16. We have also taken into account more general principles of statutory interpretation. The words of the legislation must be the starting point and, when they are clear, they may also be the finishing point: FR & Anor (Albania), R (on the application of) v SSHD [2016] Imm AR 1341; [2016] EWCA Civ 605, at [51]. Many statutory provisions, however, cannot properly be understood simply by reference to their literal meaning. As set out by Lord Bingham in R (Quintavelle) v Secretary of State for Health [2003] 2 AC 687; [2003] UKHL 13, at [8]:
“The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined, and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”
(3)(c) The Explanatory Notes
17. The Explanatory Notes published with NABA state:
“338. Background: For an individual to be considered a refugee, they must have a "well-founded fear" of being persecuted for a Convention reason. The Refugee Convention does not elaborate on the definition of a "well-founded fear" and so the Courts have developed case law in this area. Under current case law, the standard to which a claim must be assessed is low. The claimant must show that there is a "reasonable degree of likelihood" of persecution due to one, or more, of the reasons outlined in the Refugee Convention. […].
339. This provision establishes a clear two-limb test for assessing whether an asylum seeker has a well-founded fear of persecution and will raise the standard of proof which an asylum seeker must satisfy for certain elements of the test. …
341. Subsection 2 sets out the first limb of a two-limb test. Under the first limb, the decision-maker determines whether the claimant has established that they have a characteristic, as set out in the Refugee Convention, which could cause them to fear persecution in their country of nationality (or the country of their former habitual residence) and whether they do in fact fear such persecution based on that characteristic. This is assessed on the "balance of probabilities" standard.
342. Subsections 3 to 5 set out the second limb of the test. Should the first test be met, the decision maker is instructed to consider whether the claimant may be persecuted if returned to their country of nationality (or the country of their former habitual residence) as a result of the reason established under subsection 2. This is assessed on the basis of whether there is a "reasonable likelihood" that they may face such persecution. This assessment must include an assessment of protection from persecution (see section 34) and internal relocation (see section 35).”
(3)(d) The Secretary of State’s guidance
18. At the hearing before us, Mr Lindsay relied on the respondent’s guidance on Assessing credibility and refugee status in asylum claims lodged on or after 28 June 2022, version 13.0 (“the credibility guidance”) and Humanitarian protection in asylum claims lodged on or after 28 June 2022, version 9.0 (“the humanitarian protection guidance”). He accepted that this guidance is no more than the respondent’s view of what NABA requires and should not be regarded as an authoritative source of statutory interpretation. He submitted, however, that we should endorse it because it is consistent with NABA. Where relevant, we have taken it into account as a statement of the respondent’s position on the issues before us, but no more.
(3)(e) Karanakaran
19. Prior to NABA, the judiciary had identified certain basic principles governing the determination of refugee status, taking into account the object and purpose of the Convention and the guidance issued by the UNHCR and having regard to the practice of other jurisdictions with similar legal traditions, including Australia, Canada and the United States of America.
20. Until the end of the Brexit transition period, the terms of Council Directive 2004/83/EC of 29 April 2004 on Minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”) also played a limited role, but it did not displace the principles developed by UK courts: DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 00223 (IAC) at [67]-[73]; KS (benefit of the doubt) [2014] UKUT 00552 (IAC).
21. The foundation of the approach to decision-making in asylum cases in this jurisdiction is the judgment of the Court of Appeal in Karanakaran. That judgment repays careful study and deserves re-reading by any practitioner or judge in this field. We will cite some passages, but we commend the careful scrutiny of the judgment as a whole.
22. Brooke LJ (with whom Robert Walker LJ and Sedley LJ agreed) said:
“44. The English cases show that the courts have recognised that different techniques are required in asylum cases when a decision-maker has to make judgments about future outcomes. The law in this respect is now authoritatively settled in this country by the decision of the House of Lords in Sivakumaran [1988] 1 AC 958. In that case it was held that when deciding whether an applicant’s fear of persecution was well-founded it was sufficient for a decision-maker to be satisfied that there was a reasonable degree of likelihood that the applicant would be persecuted for a Convention reason if returned to his own country … Lord Diplock held at p 994 that bearing in mind the relative gravity of the consequences of the court’s expectation being falsified, it was appropriate to adopt a lesser degree of likelihood than that inherent in the expression “more likely than not”. He saw no significant difference between such expressions as “a reasonable chance”, “substantial grounds for thinking”, and “a serious possibility” …
45. The decision in Sivakumaran did not, however, resolve the different, but related, question as to the standard of proof a decision-maker should apply when considering evidence of past or present facts before he or she goes on to make the necessary assessment of the future.”
23. Brooke LJ began by considering the decision of a panel of senior legal members of the Immigration Appeal Tribunal in Kaja [1995] Imm AR 1. The panel had been convened to give guidance “on the correct approach to questions connected with the standard of proof to be adopted in asylum cases in relation to the establishment of past and present facts, as opposed to the assessment of future chances.”: [50]. As summarised by Brooke LJ:
“51. The majority of the tribunal considered that the question they had to decide was whether the assessment of an asylum case was a two-stage process or a one-stage process. They considered that it was a one-stage process. The task of the decision-maker was to assess, to a reasonable degree of likelihood, whether the applicant’s fear of persecution for a Convention reason was well-founded. It might be that there were parts of the evidence which on any standard were to be believed or not to be believed. Of other parts, the best that might be said of them was that they were more likely than not. Of other parts it might be said that there was a doubt. The need to reach a decision on whether an appellant had made his case to a reasonable degree of likelihood, arose only on the ultimate evaluation of the case, when all the evidence and the varying degrees of belief or disbelief were being assessed.
52. The majority considered that if there was a first stage (proof of present and past facts) followed by a second stage (assessment of risk) then any uncertainties in the evidence would be excluded at the second stage, and that this could not be right.”
24. Contrary to how the case had subsequently been described, the majority in Kaja had not decided that “the lower standard of proof set out in Sivakumaran applied both to the assessment of accounts of past events and the likelihood of persecution in the future” ([54]) such that “an historical event or fact is proved by an asylum-seeker when he or she demonstrates that there is a reasonable likelihood that it occurred”: [57]. Instead:
“55. What they decided was that when assessing future risk decision-makers may have to take into account a whole bundle of disparate pieces of evidence:
(1) evidence they are certain about;
(2) evidence they think is probably true;
(3) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true;
(4) evidence to which they are not willing to attach any credence at all.
56. The effect of Kaja is that the decision-maker is not bound to exclude category (3) evidence as he/she would be if deciding issues that arise in civil litigation.”
25. In the initial hearing in Karanakaran, the Secretary of State’s counsel had confirmed that she was not instructed to challenge Kaja: see [58]. The next day, however, a different division of the Court of Appeal had handed down its judgment in Horvath v SSHD [1999] Imm AR 121; [1999] EWCA Civ 3026. In that judgment, Stuart-Smith LJ had expressed the view, at [26], that “the Sivakumaran/Kaja standard of proof” should not be extended “to the assessment of historical and existing facts”. Ward LJ had agreed, saying, at page 35:
“There must be some factual basis from which an assessment of the risk can be made and those facts, importantly the historical facts of what actually happened to the asylum-seeker, are proved on the balance of probability.”
26. The Court had therefore listed Karanakaran for further hearing on three questions, set out at [74]:
“(1) Whether Kaja was correctly decided;
(2) Whether it would be possible to maintain a regime in which there was one standard of proof in relation to historic or existing facts for the purposes of the first part of the definition of "refugee" in the Convention, and a different standard of proof in relation to such facts for the purpose of considering issues of protection and internal relocation;
(3) The extent to which the assessment of an applicant's personal characteristics (when relevant to internal relocation issues) was inextricably bound up with the findings as to historic and existing facts that were made about him/her.”
27. Brooke LJ began his answer to these questions with a review of recent Australian caselaw. At [84], he quoted at length from the judgment of the High Court in Wu Shan Liang (1996) 185 CLR 259, in which it was explained why it was “misguided” to “draw too closely upon analogies in the conduct and determination of civil litigation”:
“Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature.”
28. Brooke LJ expressed his agreement at [87] and reiterated later in the judgment, at [101]:
“In the present public law context, where this country's compliance with an international convention is in issue, the decision-maker is, in my judgment, not constrained by the rules of evidence that have been adopted in civil litigation, and is bound to take into account all material considerations when making its assessment about the future.”
29. He also expressed, at [99], the view, shared by the parties, that
“it would be quite impracticable to maintain a regime in which there was one approach to the evidential material relating to historic or existing facts for the purposes of the first part of the definition of “refugee” in the Convention, and a different approach to such material for the purpose of considering issues of protection and internal relocation”
30. He concluded that the Kaja approach should be followed:
“102. This approach does not entail the decision-maker … purporting to find “proved” facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). …”
“104. Needless to say … when assessing the future, the decision-maker is entitled to place greater weight on one piece of information rather than another.”
31. In his concurring judgment, with which both other Lords Justices agreed, Sedley LJ gave his views on the differences and similarities between asylum appeals and civil litigation:
“16. The civil standard of proof, which treats anything which probably happened as having definitely happened, is part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or (by parity of reasoning) the quality of past ones. It is true that in general legal process partitions its material so as to segregate past events and apply the civil standard of proof to them: so that liability for negligence will depend on a probabilistic conclusion as to what happened. But this is by no means the whole process of reasoning. … a civil judge will not make a discrete assessment of the probable veracity of each item of the evidence: he or she will reach a conclusion on the probable factuality of an alleged event by evaluating all the evidence about it for what it is worth. Some will be so unreliable as to be worthless; some will amount to no more than straws in the wind; some will be indicative but not, by itself, probative; some may be compelling but contra-indicated by other evidence. It is only at the end-point that, for want of a better yardstick, a probabilistic test is applied. … So it is fallacious to think of probability (or certainty) as a uniform criterion of fact-finding in our courts: it is no more than the final touchstone, appropriate to the nature of the issue, for testing a body of evidence of often diverse cogency.
…
“18. … The question whether an applicant for asylum is within the protection of 1951 Convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant's case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals … Such decision-makers, on classic principles of public law, are required to take everything material into account. … No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. … Finally, and importantly, the Convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or criminal litigation need not detain us now.”
32. In SR (Iran) v SSHD [2007] EWCA Civ 460, Sedley LJ warned against “import[ing] the ultimate question of risk into the evaluation of each piece of evidence.” He quoted from the guidance in Karanakaran that “No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it” and applied that to the appeal before him:
“8. … it was the AIT’s task, first, to discard any evidence judged to be of no value at all: here, for example, the account which, for better or for worse, had been disbelieved on an earlier hearing. For the rest, the AIT had to take each element of evidence into account for what it was worth. Some of the evidence was worth a good deal to the appellant: for example the in-country evidence adopted in §38 and expanded thereafter about how Christians are marginalised and subjected to discrimination in Iran. Some of it, in the AIT’s judgment, was less compelling: for example that the appellant would expose herself to persecution by evangelising.
9. There is nothing wrong with the differential levels of proof or disproof of primary facts found by the tribunal. … The law does not demand, at least in this field, that each finding of fact, whatever its degree of certainty or uncertainty, be fitted into a single matrix of risk. The fact-finder's task is, to the extent made possible by the evidence, to find facts, and some facts are more certain than others. It would have been as unjust to the appellant to treat as mere possibilities things which, on the AIT's findings, were highly likely as it would have been to the respondent to treat possibilities of hardship as probabilities.
10. The critical adjudicative task is to assemble these findings into an evaluation which answers the question posed by law. In asylum and human rights claims, that is the question of real risk, and it is at the point of decision and not sooner that it arises.”
33. In MA (Somalia) v SSHD [2011] 2 All E.R. 65; [2010] UKSC 49, at [13]-[18], the Supreme Court returned to the question of whether there should be a different standard of proof in “relation to the proof of past or existing facts as in relation to the assessment of future risk”, albeit in the context of an appeal under Article 3 of the European Convention on Human Rights (“ECHR”). The Court summarised the issues in Karanakaran and the Court of Appeal’s conclusion that “the test of reasonable degree of likelihood should be applied to all aspects of the determination”. It noted that this approach had been endorsed by the Court of Appeal again in GM (Eritrea) & Ors v SSHD [2008] EWCA Civ 833.
34. This, then was the established approach to asylum decision-making in the UK prior to NABA which, according to the Explanatory Notes, section 32 was intended to replace.
(4) Decisions under NABA
(4)(a) The Assessment of Evidence
35. In our judgment, NABA makes no change to the process of determining refugee status other than introducing a two-stage process and raising the standard of proof at Stage One, i.e. on questions 1 and 2. In particular, NABA does not affect the principles governing the assessment of evidence.
36. The decision-maker must therefore continue to evaluate the evidence in the round when answering each question. NABA does not require the decision-maker to decide whether each alleged material fact, taken in isolation, is more likely than not to be true. All of the evidence must be taken into account when answering each of questions 1 to 5 and must be given whatever weight it is due.
37. For this reason, we agree with Mr Lindsay’s submission before us that the respondent’s credibility guidance is correct when, at page 43, it instructs decision-makers to continue to approach the evidence in the manner described in Karanakaran when deciding questions 1 and 2. It paraphrases this approach as requiring decision-makers to“not ignore facts which were in doubt (or uncertain) but rather consider that everything capable of having a bearing on the case must be given the weight, great or little, due to it.”
38. Tribunals should follow the same approach. The only matters which have to be determined on the balance of probabilities are questions 1 and 2 themselves.
39. Nor do we consider that there is anything in NABA which purports to overturn any of the other established principles concerning the assessment of evidence, such as the requirements:
(1) to take a structured approach to credibility (KB & AH (credibility-structured approach) [2017] UKUT 491);
(2) to assess credibility, and plausibility in particular, in the country context (Y v SSHD [2006] EWCA Civ 1223 at [25]; HK v SSHD [2006] EWCA Civ 1037 at [27-30]);
(3) to take into account a witness’ personal characteristics, such as their age, culture, level of education or experience of trauma (e.g.: AM (Afghanistan) v SSHD [2018] 4 WLR 78; [2017] EWCA Civ 1123 at [18]; MN v SSHD [2021] 1 WLR 1956; [2020] EWCA Civ 1746 (“MN and IXU”) at [106]-[108] and [250]);
(4) not to draw adverse inferences from the absence of corroborative evidence unless that evidence was reasonably available (MAH (Egypt) v SSHD 2023] Imm. A.R. 713; [2023] EWCA Civ 216 at [86]); and
(5) not to fall “into the trap of dismissing an appeal merely because the appellant had told lies” (MA (Somalia) at [32]).
40. None of these principles are derived from the one-stage approach established in Karanakaran or from the standard of proof (indeed, in MN and IXU the standard of proof was the balance of probabilities) and most continue to be reflected in the respondent’s post-NABA guidance. Many of these principles, moreover, reflect the “ameliorative principle” which motivated the panel in Kaja, which, as stated in Karanakaran at [53], was “influenced by the notorious difficulty many asylum-seekers face in "proving" the facts on which their asylum plea is founded”. (For the distinction between the “ameliorative” and the “precautionary” principles in refugee decision-making, see MA (Ethiopia) v SSHD [2009] EWCA Civ 289; [2010] INLR 1, at [79]-[81] and KS (benefit of the doubt) [2014] UKUT 00552 (IAC) at [59].) They are also consistent with the approach to evidence recommended in the UNHCR Handbook, as set out above at [14].
(4)(b) Question 1: Actual or Attributed Characteristic
41. Section 32(2)(a) requires a decision-maker to determine, on the balance of probabilities, whether the asylum seeker:
(1) 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” (which, for the sake of brevity, we will term “a relevant characteristic”); or
(2) “has such a characteristic attributed to them by an actor of persecution”.
42. Answering question 1 thus requires a specific finding of fact about the asylum seeker, as at the date of the hearing (hence the use of the present tense: “has”). However, when answering question 1, it may often be relevant to consider evidence concerning events alleged to have taken place in the past. For instance:
(1) An asylum seeker may claim to fear persecution because they have exited their country illegally or because they have engaged in political expression; or
(2) Past attendance at church services may be relied on by an asylum seeker as evidence of a present religious belief.
43. However, and in line with what we have said above, section 32(2)(a) does not require that such an alleged fact must be proved on the balance of probabilities, nor that evidence of such an alleged fact must be ignored unless the alleged fact is proved on the balance of probabilities. All that section 32(2)(a) requires is that, having taken account of all of the relevant evidence, and having given to each item of that evidence the weight considered appropriate by the decision-maker, the decision-maker determine on the balance of probabilities whether the asylum seeker either has a relevant characteristic or has a relevant characteristic attributed to them by an actor of persecution.
44. We respectfully agree with what is said about question 1 in JCK at [13]-[14], except for the last sentence of [13], i.e.:
“Put simply the question raised by s32(2)(a) is whether, taking the claim at its highest, there is a Convention reason.”
45. We respectfully disagree with this sentence for two reasons:
(1) The suggestion that question 1 should be answered by “taking the claim at its highest” has no basis in, and indeed is inconsistent with, section 32(2)(a). To take a claim at its highest means to accept that it is true, rather than to make a determination on the balance of probabilities that it is true.
(2) Section 32(2)(a) does not ask “whether … there is a Convention reason”, but whether the asylum seeker either has a relevant characteristic or has a relevant characteristic attributed to them by an actor of persecution.
46. For these reasons, the final sentence of [13] of JCK and, consequently, the final sentence of [3] of the headnote to JCK should no longer be followed.
(4)(c) Question 2: Whether the Appellant “Does in Fact Fear” Persecution
47. A claim for asylum inevitably involves an assertion of current fear. The word fear appears in the refugee definition, which means that anyone claiming to be a refugee is claiming to have a subjective fear of persecution. In the UK, the asylum process begins with a screening interview in which the applicant should be asked first why they “cannot return” to their home country, followed by the questions “What do you fear will happen to you on return to your home country?”, “Who do you fear?” and “Why do you fear them?” Similar questions are routinely asked at the substantive interview as well. Because the asylum process requires an applicant to assert that they are in fear and to specify who and what they fear, it is difficult to imagine how, in most cases, a decision-maker could answer question 2 without some assessment of an appellant’s credibility. Cases involving children and others who can be reasonably expected not to appreciate the risks they would face on return will require particular care.
48. As rightly pointed out in JCK at [17], the question of whether an appellant does in fact fear persecution may be informed by findings about the probable likelihood of the truth of their account of their past experiences. If it is accepted that a person has been persecuted or threatened with persecution in the past, it may be reasonable to infer that they are probably telling the truth when they claim to have a present fear of future persecution. As question 2 is in the present tense, the likely truth of their account of their present circumstances may be equally relevant.
49. There may, however, be cases in which it is accepted that an appellant has a characteristic that could cause them to fear persecution but the evidence nonetheless raises doubts about whether they actually do fear it, in spite of having asserted this by claiming asylum. Perhaps the most obvious is where the appellant’s behaviour indicates a lack of actual fear; hence the relevance of the section 8 factors specifically referred to at section 32(2), such as delay in claim. As also noted in JCK at [17], there may be cases where an appellant’s account of past events is accepted, but where there has been a significant change in circumstances that makes a genuine, present fear less likely.
50. For these reasons, Q=questions 1 and 2 must be answered separately, in spite of the potential overlap between the relevant evidence.
(4)(d) Whether tribunals should answer Questions 3 to 5
51. As set out above, section 32(3) of NABA stipulates that:
“Subsection (4) applies if the decision-maker finds that—
(a) the asylum seeker has a characteristic mentioned in subsection (2)(a) (or has such a characteristic attributed to them), and
(b) the asylum seeker fears persecution as mentioned in subsection (2)(b).”
52. In other words, decision-makers are not required to decide whether a person would be at real risk of persecution or whether either state protection or internal relocation would be available unless they have decided that the person both has a characteristic that could cause them to fear persecution for a Convention reason and actually does fear persecution.
53. We endorse the guidance set out in JCK, at [26], that it may be a “sensible ‘belt and braces’ approach” to answer questions 3 to 5 even if they are not satisfied that the answer to questions 1 and 2 is ‘yes’. However, nothing in NABA requires this, and it will not be an error of law if a judge decides not to do so.
(4)(e) Questions 3 to 5
54. Section 32(4)(a) of NABA requires decision-makers to decide
“whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) … they would be persecuted as a result of the characteristic mentioned in subsection (2)(a)”
This is question 3.
55. Section 32(4)(b) requires a decision on whether the appellant would not be protected “as mentioned in section 34” [“protection from persecution”]. This is question 4.
56. Both of these matters must be determined. There is no equivalent to the instruction found at 32(3) that protection against persecution must only be determined if there has been a prior finding that there is a reasonable likelihood of persecution.
57. Section 32(5), finally, mandates a “consideration” of the issue of internal relocation when making the determinations required by section 32(4). This is question 5. It is unclear what the distinction is between determining whether sufficient protection is available and giving “consideration” to internal relocation. We heard no submissions on this issue and express no opinion on it.
58. When assessing risk on return, the decision-maker will take the same approach to the evidence as at the first stage, and take into account all relevant evidence except that to which they are willing to give no credence at all. They will not be confined to assessing risk on the basis only of findings about past and present facts that have been established to the balance of the probabilities, because findings will not have been made to this standard about all facts material to questions 3-5. Findings will only have been made to this standard about the answers to questions 1 and 2. It is not a question of reopening findings made at the first stage but of recognising how limited those findings will have been in some cases.
59. There may also be aspects of the evidence that was not considered at Stage One at all. For example, the appellant may rely on personal evidence of future risk that was not material to question 1, such as a recent threat to the appellant or acts of persecution against others similarly situated, and there may have been sufficient evidence of genuine fear that it was not necessary to consider this evidence with regard to question 2. The question of state protection and internal relocation may require consideration of facts that were not relevant to questions 1 and 2.
60. All of the established principles of evidence assessment outlined at [39] above continue to apply here. The evidence must be assessed in the round, and all of the evidence given the weight due to it.
61. It is trite law that a “reasonable likelihood” of persecution is made out if the risk is as low as a one in ten chance.
(4)(f) Articles 2 and 3
62. Section 32 only applies to claims made under the Refugee Convention. It is silent about claims based on Article 2 or 3 of the ECHR or claims for humanitarian protection. Those claims must therefore continue to be determined according to the one-stage process and to the standard of a reasonable degree of likelihood, in accordance with the established caselaw: MA (Somalia) at [12]-[13], citing Vilvarajah & Ors v United Kingdom 13163/87; 13164/87; 13165/87; [1991] ECHR 47 at [103] and Saadi v Italy 37201/06 [2008] ECHR 179 at [132]. See also SC (Jamaica) v SSHD [2022] 1 WLR 3190; [2022] UKSC 15 at [27].
63. This means that, in cases in which the answer to NABA question 1 or 2 has been negative, those answers cannot be carried forward into the Article 2 or Article 3 analysis.
64. The respondent’s Humanitarian protection guidance is correct in this regard: in spite of any factual overlap between the asylum and the humanitarian protection claim, it instructs decision-makers:
“As a result of the lower, ‘real risk’, standard of proof which is applicable to all elements of considering whether a claimant qualifies for humanitarian protection, you must reconsider all material facts to the lower standard.”
65. This is important, because the factual matrix underlying an asylum claim will normally also give rise to an Article 2 or 3 claim: unlawful killing, torture and, in many cases, inhuman or degrading treatment are serious enough harms to meet the definition of persecution. Usually, the only difference between an asylum claim and an article 2 or 3 claim will be the need to identify a Convention reason for the harm feared in the former claim, but not the latter.
(5) The Appellant’s Immigration History and his Asylum Claim
66. The appellant is a citizen of Afghanistan born in 1993. He arrived in the UK on 30 January 2017 and claimed asylum, but on 22 October 2017, the respondent refused his claim and certified it as clearly unfounded on the grounds that he had obtained international protection in Italy. The appellant absconded and remained in the UK. Beginning in September 2019, the appellant was convicted of a number of criminal offences. The longest sentence he received was four weeks’ imprisonment. On 18 June 2022, the respondent decided to deport the appellant to Italy, but on 12 October 2022, the Italian authorities indicated that he was no longer eligible for international protection there, due to his long absence from the country, and he would not be readmitted. The appellant therefore made a second claim for asylum in the UK on 18 November 2022.
67. The respondent interviewed the appellant about his asylum claim twice, on 2 April and 30 April 2024. In summary, the appellant claimed that starting in 2002-2003 (or 2008), the Taliban had persistently demanded that his family allow them to use their home to attack a nearby American military base. The family had refused, and the Taliban beat his father and killed his paternal uncle for refusing to cooperate with them. As the appellant grew older, the Taliban began to put pressure on him to join them. He initially avoided forced recruitment by going into hiding within Afghanistan, but in 2015 or 2016, he fled the country. He said that he feared that he would be killed by the Taliban on return for having escaped them and gone abroad.
(6) The Respondent’s Decision
68. In her decision of 30 May 2024, the respondent rejected the appellant’s account of having been targeted by the Taliban on the grounds that it was internally inconsistent and lacking in detail. Relying on the 2018 country guidance case of AS (safety of Kabul) Afghanistan CG [2018] UKUT 118, the respondent further found that the appellant’s removal would not breach the UK’s obligations under Article 3 because of the humanitarian conditions in Afghanistan or the risk of indiscriminate violence there. She considered whether his deportation would be inconsistent with the UK’s obligations under Article 8 ECHR and found that it would not.
69. The respondent maintained this decision in a review decision dated 19 March 2025.
(7) The Appellant’s Appeal to the First-tier Tribunal
70. The appellant appealed. In support of his appeal, he submitted a skeleton argument, a brief witness statement repeating the account which he had given in his interviews, 14 pages of articles about the human rights and security situation in Afghanistan from a range of sources including Amnesty International and articles explaining why refugees from Afghanistan might struggle to report their dates of birth accurately, especially in the Gregorian calendar.
71. The Judge heard the appeal on 4 April 2025 and her decision is dated 29 April 2025.
(8) The Judge’s Decision
72. The Judge began by setting out, at [1]-[5], the appellant’s immigration history and criminal offences, stating, at [3], as follows:
“Whilst in immigration detention pending removal to Italy, a health care assessment was conducted in which it was noted … that he suffered with asthma, PTSD, and a history of psychosis, and that he was medicated with olanzapine and mirtazapine on a daily basis.”
73. Having identified, at [7]-[9], the evidence which was before her, the Judge then set out the “Legal framework” in the following terms:
“10. To succeed in an appeal on asylum grounds, the Appellant must show a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion). The burden of proof rests on the Appellant. As the asylum claim was made on or after 28 June 2022, pursuant to s32 of the 2022 Act, in considering whether the Appellant qualifies as a refugee, I must apply a two-stage test. As per the guidance from JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100 the following matters on the balance of probabilities must be determined first:
(a) Taking the appellant’s claim at its highest, is there a convention reason?
(b) Does the Appellant fear persecution for that convention reason?
11. If so, consideration must be given to whether it is reasonably likely that:
(a) The Appellant would be persecuted for that Convention reason;
(b) There would not be sufficient protection available; and
(c) The Appellant could not internally relocate.
12. To succeed on an appeal on humanitarian protection grounds the Appellant must not be a refugee; they must show substantial grounds for believing that they would face a real risk of suffering serious harm in their country of origin. The burden of proof rests on the Appellant.”
74. At [13]-[14], the Judge set out the respondent’s position. The respondent accepted that the appellant was 31 years old and a national of Afghanistan but did not accept that his account of having come to the adverse attention of the Taliban was credible. The respondent did not accept that the appellant’s fear of forced recruitment by the Taliban “amounted to a Convention reason”. The respondent accepted that, if the core of the appellant’s account were found to be credible, neither sufficiency of protection nor internal relocation would be open to him.
75. At [14], the Judge identified the issues in dispute as:
(1) “Whether there was a Convention reason”.
(2) “Whether the Appellant provided a credible account which demonstrated they were at risk of persecution on return either under the Convention or qualified for humanitarian protection/Article 2 or 3 of the ECHR”.
(3) “Whether the Appellant’s removal would be a breach with [sic] his right to respect for private life under Article 8 of the ECHR.”
76. At [15], the Judge confirmed that she had heard evidence from the appellant, through a Pashto interpreter, followed by submissions from the parties.
77. The Judge’s findings followed at [16]-[33]. At [16], the Judge noted that the Home Office Presenting Officer, Mr Morris, had submitted that there was no Convention reason because the appellant had expressed only a “generalised fear” of the Taliban. The Judge found, however, at [17], that:
Taking his claim at its highest it is clear that he can be perceived to be opposed to the Taliban. The executive summary of the CPIN provides that the Taliban are considered the controlling party of the state for the purpose of Article 1 (A)(2) of the Refugee Convention. Therefore, the Appellant's fear from the Taliban and his resistance to being recruited by them would at its highest be seen as opposition to the Taliban regime and in effect as opposition to the state. Therefore, I am satisfied on balance the Appellant has demonstrated a fear of persecution for a Convention reason.”
78. The Judge then said as follows, at the beginning of [18]:
“In considering Question 2 and a subjective fear test, I go on to consider the Appellant’s account on a balance of probabilities.“
79. The first issue which the Judge then considered, in the remainder of [18], was whether, as the respondent submitted, the appellant’s inconsistency about his age when he arrived in the UK had damaged his overall credibility. The Judge took into account the articles which the appellant had submitted “which highlight that individuals in Afghanistan would not know the years of birth and often this was therefore estimated.” She concluded that the appellant’s inconsistency about his age did not, in itself, provide good reason on balance to detract from the credibility of the core of the appellant’s claim.
80. The Judge then set out, at [19]-[20], the account which the appellant had given “in relation to his troubles with the Taliban” in his asylum interview and in his evidence at the hearing.
81. Paragraph [21] begins:
“Having considered the totality of the evidence on this aspect of the claim, I am not satisfied, on balance, that it is credible that the Taliban consistently approached the Appellant, his uncle, and other family members over a number of years, seeking accommodation in their home, without any substantive consequences following their refusal. Whilst the Taliban were not in power at the time, the Appellant’s own evidence confirms they had a known presence in his area.”
82. At [22], the Judge set out “the appellant’s account of escaping the Taliban on multiple occasions” and announced her conclusion that it was not credible. At [23], she gave her reasons for this conclusion: in the context of the appellant’s account of the Taliban’s persistent attempts to recruit him and their “known methods of forcible recruitment”, it was not reasonable to believe that, upon finally encountering him, they would “fail to immediately apprehend or recruit him”, but instead allow him to evade capture under the pretence of retrieving his clothes and prayer mat.
83. The Judge then referred to further matters which she considered to be adverse to the credibility of the appellant’s account of the Taliban’s adverse interest in his family , based on the account’s perceived implausibility (dealt with at [24]-[25]) and lack of detail (dealt with at [26]-[27]). We note that the Judge ended [24] by saying
“These factors undermine the credibility of his claimed fear of the Taliban.”
84. At [28], the Judge said that she had “considered the Appellant’s account against the situation as it was in Afghanistan before he left”, although she did not give any details of her knowledge about that situation or identify the source of it. She repeated that it was not plausible that the appellant had been able to escape the Taliban for such a lengthy period or that his family had been able to continue to live in their home area without suffering “any real consequences”.
85. At [29], the Judge found that the appellant’s credibility had been damaged by his actions in seeking asylum in Hungary and Italy, by his departure from Italy, where he had been granted protection and by the fact that he had absconded after claiming asylum in the UK. The Judge said that
“I am satisfied that these actions collectively detract from the credibility of his claim that [sic] to have a well-founded fear of persecution on his arrival in the United Kingdom.”
86. The Judge set out the following conclusions:
“30. Against this background, I cannot be satisfied that the Appellant would have any difficulties in his home area if he were returned, he certainly has family in Afghanistan who would be in a position to support his return.
31. For the reasons set out above, the Appellant has failed to demonstrate a real risk of persecution for a Convention reason on return. Likewise, the Appellant could not succeed with reference to Article 2 and Article 3 of the ECHR or qualify for humanitarian protection. “
87. At [32], the Judge gave her reasons for rejecting the appellant’s Article 8 claim and, at [33], she reminded herself that the deportation of foreign criminals is in the public interest. She dismissed the appeal.
(9) The Appeal to the Upper Tribunal
88. The appellant applied for permission to appeal against the Judge’s decision. Permission to appeal was refused by a different FtT judge on 24 September 2025, but granted by an Upper Tribunal Judge on 14 November 2025. The appellant relied on three grounds of appeal:
(1) Ground 2 was not relied on before us and we say no more about it.
(2) Grounds 1 and 3 were conceded by the Secretary of State.
89. In those circumstances, we could have produced a very short decision, but we have found it appropriate to consider at some length what is required by NABA because:
(1) The majority of the written and oral submissions before us concerned general issues as to the application of section 32, especially in relation to the assessment of evidence.
(2) As a result, it appeared to us that there was a need for guidance which went beyond the existing guidance to be found in JCK.
(3) Indeed, as indicated above, it was submitted, and we agreed. that in one respect the guidance in JCK was incorrect.
(4) The present case provides a helpful illustration of some of the problems which can be encountered by a judge seeking to comply with section 32.
(9)(a) The Grounds of Appeal
90. Ground 1 is that:
“the First Tier Tribunal erred in law in determining DS’s asylum claim, and specifically the truth or otherwise of the facts asserted by DS, not on the standard of a reasonable degree of likelihood (MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216; Karanakaran v Secretary of State for the Home Department [2000] 2 All ER 449) but instead on the balance of probabilities”
91. Ground 3 is that
“the Judge of the First Tier Tribunal erred in law in apparently applying the provisions of section 32 Nationality and Borders Act 2022 to DS’s human rights appeal”.
(9)(b) The Skeleton Arguments
92. The respondent did not file a response to the grant of permission under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. However, in accordance with directions, she filed a skeleton argument on 17 March 2024. At that stage, the respondent submitted that the Judge had correctly determined the asylum aspects of the appeal, in accordance with JCK. The respondent submitted that this was a case in which it was appropriate to determine the truth of the appellant’s account in order to decide whether he had a subjective fear and that was what the Judge had done.
93. However, the respondent acknowledged in her skeleton argument that the Judge had erred by applying section 32 in determining the Article 2 and 3 claim, when she was required, instead, to consider “all material facts” to the lower standard of a reasonable degree of likelihood when assessing those aspects of the appeal.
94. On 18 March 2026, the appellant filed his skeleton argument. The first question it addressed was, “What is the standard of proof to be applied by decision makers when considering past events narrated by an asylum seeker/Appellant in an appeal under subsection 82 (1) [of the Nationality, Asylum and Immigration Act 2002]?” It cited JCK for the proposition that:
“the only questions which are to be resolved by those deciding asylum applications or appeals by the application of the standard of proof of a balance of probabilities are:
(i) whether (“taking the claim at its highest”) there is a Convention reason (ss 32 (2) (a)) and
(ii) whether the applicant has a fear of being persecuted (ss 32 (2) (b)). As to this latter question the Upper Tribunal also correctly concluded that:
“Assessing that fear is a discrete exercise from assessing whether past events occurred.” (emphasis in original)
95. The skeleton then set out what it meant to take a claim at its highest, with reference to R (on the application of) FR & Anor (Albania), v SSHD [2016] Imm. A.R. 1341; [2016] EWCA Civ 605 and the respondent’s guidance on Certification of protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002, version 7.0. It meant accepting the claim as true for the purposes of the decision. There should be no finding as to credibility unless the account is entirely incapable of belief. Therefore, there should be no assessment of credibility when answering question 1.
96. With regard to question 2, it was argued that whether an appellant had a subjective fear was “discrete” and “different” question from whether the historical facts presented by an appellant are accepted or rejected. This was the guidance contained in JCK and “inevitable” given the wording of the statute. The appellant noted that the respondent (and the FtT judge who had refused permission) had relied on [25] of JCK as allowing the FtT to assess the credibility of the appellant’s account of past events when deciding question 2. The appellant focussed on the comment within that paragraph that “It is not possible to evaluate subjective fear – and in many cases Convention ground - without having some regard to the context in which that fear is said to arise.” He submitted that this was only referring to taking into account evidence of the country context. Moreover, JCK had only allowed that “some regard” might be had to country conditions in “most cases” and, at [17], that “[t]here 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’”. There was nothing here to suggest that the tribunal should assess the appellant’s account of past events on the balance of probabilities.
97. The fact that the truth of the account was distinct from the existence of subjective fear was clear from the example of a “paranoid” person who might have a genuine subjective fear even if none of the facts they narrated had in fact occurred.
(9)(c) The Upper Tribunal’s Questions
98. Prior to the hearing before us, we issued further directions, asking the parties to be prepared to address two specific questions at the hearing, which were as follows:
“(i) Paragraph 13 of JCK ends with the sentence, “Put simply the question raised by s32(2)(a) is whether, taking the claim at its highest, there is a Convention reason.” Is that consistent with the language of the statute?
(ii) If the respondent is right and the FtT was permitted to consider the truth of the appellant’s account of past events when determining Question 2, are there any circumstances in which it was required to revisit those factual findings when determining Question 3? We note in this regard that the parties are in agreement that the FtT was required to determine the appellant’s article 2 and article 3 claims to the “lower standard”.”
(10) Decision
10(a) Ground 1: Decision
99. In considering ground 1, we make the following observations about the Judge’s decision.
100. First, at [10(a)] and [17] the Judge adopted what had been said about question 1 in the last sentence of [13] in JCK. We have already explained why we consider that to have been incorrect.
101. In particular, by asking whether “taking the appellant’s claim at its highest, is there a Convention reason?” the Judge did not address her mind to the question whether the appellant had proved on the balance of probabilities that he had a relevant characteristic, i.e. question 1. The relevant characteristic in this case was an imputed political opinion, i.e. opposition to the Taliban.
102. Secondly, there is a contrast in the judgment between [17], which can be read as accepting that the appellant had that characteristic, and [21], in which the Judge said that she was not satisfied, on balance, that it was credible that the Taliban consistently approached the appellant and other family members for assistance without any substantive consequences following their refusal. Although not drawn to a head, this is the language of someone who does not find proved the appellant’s claim to have an imputed characteristic.
103. Thirdly, what the Judge said at the end of [17] appears to have provided her answer to both question 1 and question 2. In particular, by saying that “on balance the Appellant has demonstrated a fear of persecution for a Convention reason”, the Judge appears to have accepted that the appellant had demonstrated that he feared persecution, i.e. to have provided a positive answer to question 2 on the balance of probabilities.
104. Fourthly, it is curious, therefore, that the Judge went on to say, at [18], that she was considering question 2, the subjective fear test, since she appeared to have already answered question 2 by finding that the appellant had demonstrated a fear of persecution. Supposing, however, that this issue can be dealt with by a charitable reading of the Judge’s decision, the next issue remains.
105. Fifthly, the Judge said in [18] that, in considering question 2, she had to consider the appellant’s account on a balance of probabilities. As we have explained above, that is not something which section 32 requires. Insofar as the Judge approached the evidence on this basis, she was in error.
106. Sixthly, the Judge having said at the outset of [18] that she was turning to question 2, the “subjective fear test”, there is no point thereafter when the Judge unequivocally provided her answer to question 2. We have referred to the last sentence of [24], but that was no more than an assessment of certain aspects of the evidence which were relevant to the appellant’s credibility. The first sentence of [31], in which the Judge said that the appellant had failed to demonstrate a real risk of persecution for a Convention reason on return, is an answer to question 3, rather than question 2.
107. In all the circumstances, we consider that the respondent was correct to concede ground 1 and that there were errors of law in the Judge’s approach to question 2.
(10)(b) Ground 3: Decision
108. It is clear from the second sentence of [31] that the Judge treated her decision on the appellant’s asylum claim as determinative of the appellant’s human rights claim. As we have explained above, in cases to which section 32 applies, that is an error of law.
(11) Disposal
109. Taking into account the guidance set out in Majera v SSHD [2025] EWCA Civ 159, Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v SSHD [2022] EWCA Civ 1512, as well as the Practice Statement of 11 June 2018, we consider that remittal to the FTT is appropriate given the extensive fact-finding required.
(12) Notice of Decision
The decision of the First-tier Tribunal dated 29 April 2025 is set aside with no findings of fact preserved.
The appeal is remitted to the FtT for a fresh hearing before any other judge, on the basis that the appellant’s claim raises a fear of persecution for reasons of his imputed political opinion.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 August 2026