Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004789

First-tier Tribunal No: PA/02393/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SMEATON

Between

FL
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMNT
Respondent

Representation:
For the Appellant: Mr Waheed, counsel instructed by R N solicitors
For the Respondent: Ms Ahmed, Senior Presenting Officer

Heard at Field House on 9 December 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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. The Appellant is a citizen of China.
2. She appeals, with the permission of the First-tier Tribunal (‘FTT’) (Judge Burnett) against the decision of FTT Judge (‘FTTJ’) French promulgated on 2 July 2025, dismissing her appeal against the Respondent’s refusal dated 26 April 2024 of her protection and human rights claim made on 2 September 2022.
Background
3. The Appellant entered the UK on 2 September 2022 and claimed asylum the same day. She had travelled from China via Greece, Italy and Spain.
4. The Appellant claims to be at real risk of persecution and/or serious harm in China because of her imputed religious belief and/or political opinion. In summary, the Appellant says that she was arrested in March 2021 for handing out leaflets at the request of her Catholic mother and that she was detained and tortured for 20 days before being released upon payment of a bribe. She says that she continued to distribute leaflets thereafter but that she went into hiding after her mother was arrested in or around June 2021. She says that she remained in hiding for nearly a year, before leaving China on her own passport, using a Schengen visa that relatives had secured for her with the assistance of an agent.
5. The Appellant met her now husband, a British national, in March 2023. They were married on 5 December 2024.
6. The Appellant’s substantive asylum interview took place on 27 March 2024. Her claim was refused in a decision dated 22 April 2024 (sent to the parties on 26 April 2024). The Respondent did not accept the core of the Appellant’s claim. It was not accepted that the Appellant was of adverse interest to the Chinese government or that a warrant had been issued for her arrest. The Respondent accepted that the Appellant was in a relationship with a British national but did not accept that her removal would breach its obligations under article 8 ECHR.
The appeal to the FTT
7. The Appellant appealed, in-time, to the FTT. The issues identified in the Appeal Skeleton Argument (‘ASA’) are not set out clearly but were, in summary:
7.1. Would the Appellant be at real risk of persecution or serious harm on return to China?
7.2. Would there be very significant obstacles to the Appellant’s integration in China?
7.3. Would removal otherwise breach the UK’s obligations under article 8 ECHR?
8. The appeal was heard by FTTJ French on 26 June 2025. In a decision promulgated on 2 July 2025, the FTTJ:
8.1. Recorded the Respondent’s concession that, if the Appellant’s account were true, she would be at real risk of persecution on her return to China. Credibility was therefore key.
8.2. Recorded the Appellant’s submissions that the focus of the hearing was about asylum, and not article 8 ECHR, and that the Appellant’s husband would not be giving evidence.
8.3. Concluded that, as the Roman Catholic church is not a prohibited organisation in China, handing out leaflets relating to Catholic doctrine would not result in persecution.
8.4. Rejected the Appellant’s claim to have been tortured both on the grounds that it was not plausible that a suspect handing out religious tracts for a permitted organisation would be tortured, and on the basis that the Appellant, if tortured, would have gone into more detail about it.
8.5. Concluded that there was no reason why the government should have any greater interest in the Appellant when she left China than when they released her without charge in March/April 2021.
8.6. Noted that the Appellant had not applied for asylum in either Italy or Spain, which adversely affected her credibility under s.8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (‘the 2004 Act’).
8.7. Noted that the Appellant had destroyed her passport without any reasonable explanation for doing so.
8.8. Concluded that the Appellant was not a credible witness and that she had fabricated her claim.
The appeal to the UT
9. The Appellant sought permission to appeal to the Upper Tribunal (‘UT’) on six grounds of appeal:
9.1. The FTTJ failed to assess the Appellant’s credibility holistically.
9.2. The FTTJ failed properly to engage with the core of the claim (that the Appellant was arrested, detained and mistreated because of her connection with her mother’s unregistered Catholic activities) and failed to consider that suspicion of involvement in underground religious activity may place her at risk.
9.3. The FTTJ failed to apply the CPIN China: Christians (October 2022) which recognises that adherents of unregistered churches including underground Catholic movements can face persecution, and failed to consider whether the Appellant’s activities fell within this group.
9.4. The FTTJ wrongly speculated that the Appellant would not have been allowed to travel through an international airport if she were at risk, failing to consider known inefficiencies in surveillance or possible corruption.
9.5. The FTTJ failed to engage with the Appellant’s explanation for not claiming asylum in Italy or France, namely that she was unaware of asylum procedures and relied on an agent.
9.6. The FTTJ failed to make findings on whether the Appellant’s removal would constitute a disproportionate interference with family life.
10. Permission to appeal was granted by FTTJ Burnett on 25 September 2025. Whilst expressing reservations about ground 6, he granted permission to appeal on all grounds.
11. The matter was listed for hearing before this Tribunal on 9 December 2025. I was provided with a bundle of documents comprising 271 pages.
12. I heard submissions from both representatives. I do not propose to rehearse the submissions here but will consider what was said during my analysis of the grounds of appeal.
13. At the end of the hearing, I indicated that my decision would be reserved.
Discussion
14. I have reminded myself of the authorities which set out the distinction between errors of fact and errors of law and which emphasise the importance of an appellate tribunal exercising judicial restraint when reviewing findings of fact reached by first instance judges (as summarised by Lewison LJ in Volpi & Anor v Volpi [2022] EWCA Civ 464). In reaching my conclusions, I acknowledge that the UT should be slow to infer that a relevant point has not been taken into account simply because it is not expressly mentioned by the judge below (applying MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi) and should not too readily assume that the FTT misdirected itself just because not every step in its reasoning is fully set out (R (on the application of JR (Jamaica)) v SSHD [2014] EWCA Civ 477).
15. I also note, however, that in an asylum context, the obligation to give the most ‘anxious scrutiny’ to a case requires reasoning that shows ‘that every factor which might tell in favour of an applicant has been properly taken into account’ (ML (Nigeria) v SSHD [2013] EWCA Civ 844).
Additional ground of appeal
16. In granting permission to appeal, FTTJ Burnett noted at paragraph 4 that there was no reference in the determination to the applicable burden or standard of proof. Although not a ground of appeal originally pursued by the Appellant, it was relied upon by Mr Waheed at the hearing. He submitted that it was a ‘Robinson obvious’ point that I was entitled to consider (applying R v SSHD ex parte Robinson [1997] EWCA Civ 3090). Ms Ahmed did not object to me considering this additional ground of appeal, although she disputed that there was any material error of law.
17. Mr Waheed submitted that the failure to identify the appropriate burden and standard of proof was a particularly significant error, given that this was a claim to which the Nationality and Borders Act 2022 (‘the 2022 Act’). The FTTJ ought to have properly directed himself on the burden and standard of proof and the Appellant ought to know, by reading the decision, that the correct approach has been applied.
18. It is not clear whether the FTTJ considered the Appellant’s claim within the statutory framework which applies to asylum claims made after 28 June 2022, as set out at section 30-30 of the 2022 Act. It is not clear what burden or standard of proof has been applied. I agree with Ms Ahmed, however, that the Appellant has not identified any specific findings which suggest that the wrong standard of proof has been applied.
19. In the circumstances, I am not satisfied that the FTTJ materially misdirected himself in law.
20. Given my conclusions below, however, this is immaterial. I have found other material errors of law in the determination which mean that the appeal must be re-determined.
Grounds 1 to 3
21. I take these grounds of appeal together. Mr Waheed acknowledged that all three grounds put the same point in different ways. The challenge focuses on the FTTJ’s findings at paragraph 13(iii)(1) of the determination, that ‘The Roman Catholic church is not a prohibited organisation in China. I am satisfied that in those circumstances handing out leaflets relating to Catholic doctrine was not going to result in persecution’. This is a significant finding. It challenges the core of the Appellant’s claim.
22. I accept that, in reaching that finding, the FTTJ failed to take into account material evidence, namely the Country Policy and Information Note (‘CPIN’) on China: Christians, from October 2022. That CPIN recognises that Christians who worship in unregistered churches and who conduct themselves in such a way as to attract the local authorities’ attention to them (which must include by way of handing out leaflets) may face a real risk of persecution or serious harm.
23. I acknowledge, as submitted by Ms Ahmed, that the Appellant does not expressly say that she was a member of an unregistered church. The Refusal Decision, however, records that the Appellant claimed to have distributed leaflets that promoted gatherings of people opposed to the government. In her asylum interview, the Appellant said that the police thought that her mother was gathering members of religious people together. The FTTJ should have considered that account in light of the CPIN. The blanket finding that, because the Roman Catholic church is not prohibited in China, handing out leaflets about Catholic doctrine will not result in persecution, is unsustainable. The CPIN suggests that the situation is more nuanced.
24. This is a material error of law, going to the core of the Appellant’s account.
Ground 4
25. This ground of appeal challenges the FTTJ’s finding at paragraph 13(iii)(4) that the Appellant was able to pass through security at an international airport on her own passport, without being intercepted by security, because she was not of any interest to the Chinese authorities. Although this was pursued by Mr Waheed, it was not developed beyond the written ground of appeal in oral submissions.
26. Considered alone, this is no more than a disagreement with a factual finding that the FTTJ was entitled to reach. There is nothing in the determination to suggest that the FTTJ was taken to background evidence about corruption or inefficient surveillance at the airport, nor was I taken to any such evidence in the CPIN which the Appellant said the FTTJ ought to have taken into account. There is no material error of law. This ground of appeal is dismissed.
27. The finding at paragraph 13(iii)(4) is, nevertheless, not sustainable because it depends on the FTTJ’s earlier finding that the handing out leaflets would not result in persecution.
Ground 5
28. This ground of appeal challenges the FTTJ’s finding at paragraph 13(iii)(10), that the Appellant’s credibility might be adversely affected by her failure to claim asylum in Italy and Spain. Mr Waheed maintains that this finding fails to acknowledge the reasons the Appellant gave for not claiming asylum in those countries. In her witness statement, the Appellant said that she was unaware of laws requiring her to claim asylum in the first safe country.
29. I do not accept that this is a material error of law. The FTTJ was obliged to take into account s.8 of the Asylum and Immigration (Treatment of Claimants etc). Act 2004. Knowledge of the requirement to claim asylum in the first safe country is irrelevant. The focus of the 2004 Act is not on what the individual knew, but whether there is any good explanation for why they did not claim asylum as soon as they were in a safe country.
Ground 6
30. This ground of appeal challenges the FTTJ’s failure to make findings on whether removal would breach the Appellant’s family rights under article 8 ECHR.
31. The difficulty with this argument is that, at the hearing before the FTTJ, the Appellant’s representative indicated that only the Appellant would be called to give evidence because article 8 ECHR was not pursued. That was how it was recorded in the Presenting Officer’s note. No submissions were made by either party on article 8 ECHR. The FTTJ was not asked to determine it. There are three references in the decision to the fact that article 8 ECHR was not being pursued. I note that at paragraph 4(ix), the FTTJ stated ‘However at the hearing the Appellant’s advocate indicated that the issue of Article 8 ECHR, should be addressed at this hearing’. That is plainly a typographical error. When read with the rest of the paragraph, it is clear that the FTTJ was stating that, whilst the skeleton argument discussed matters relevant to article 8 ECHR, he was asked not to address it.
32. During discussion of this point, Mr Waheed asked for a brief adjournment to take instructions. On his return, he acknowledged that article 8 ECHR was not pursued at the FTT hearing but said that the Appellant’s counsel below acted without instructions. There is no suggestion in the grounds of appeal that the Appellant’s previous counsel acted without instructions. Mr Waheed acknowledged that, to pursue that argument, he would need permission to amend his grounds of appeal and made an application accordingly.
33. I refuse the Appellant permission to amend his grounds of appeal to pursue this point. There is no good reason for why it was not raised until part-way through the hearing. It is, as Ms Ahmed noted, a serious allegation of professional misconduct. There is no suggestion that the Appellant’s previous counsel is aware of the allegation or that he has been given any opportunity to respond to it. I have had regard to BT v SSHD [2004] UKIAT 00311. If an appeal is based in whole or in part on allegations about the conduct of former representatives, there must be evidence that those allegations have been put to the former representative, and the Tribunal must be shown either the response or correspondence indicating that there has been no response. There is no evidence before me on the point. If I allowed the amendment, I would have to adjourn the appeal so that that evidence could be submitted and to allow the Respondent a proper opportunity to respond. In the circumstances, given my findings on grounds 1-3, that would not have been proportionate.
34. In the circumstances, this ground of appeal must be dismissed. The FTTJ did not err in failing to make findings on article 8 ECHR (family life). Although there was no formal withdrawal of this ground of appeal, it was made clear to the FTTJ that he was not being asked to make findings on it. In the circumstances, he cannot be fairly criticised for failing to do so.
Disposal
35. Applying the guidance in paragraph 7 of the Senior President’s Practice Statement (and in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 00046 (IAC) the matter ought to be remitted to the FTT to be considered de novo. The credibility of the Appellant’s claim to have been detained for handing out religious leaflets is a matter which has the potential to affect the credibility of her evidence more widely. No findings of fact are preserved.
36. There has been no formal withdrawal of the article 8 ECHR. If the Appellant still pursues arguments based on article 8 ECHR, they can be pursued at the next hearing.
Notice of Decision
37. The decision of the FTT (Judge French) promulgated on 2 July 2025 contained material errors of law. The decision is set aside and remitted to the FTT to be reconsidered to be heard by a different judge with no findings of fact preserved.

J Smeaton

Deputy Upper Tribunal Judge Smeaton
1 January 2026