Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004878
FtT Appeal No: PA/58710/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SWANEY

Between

KHI
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Dingley, counsel, instructed by Broudie Jackson Canter Solicitors
For the Respondent: Mr A Mullen, senior presenting officer

Heard at Field House on 10 March 2026

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Anonymity order
1. I have considered whether to make an anonymity order and have decided that one is necessary because the need for the United Kingdom to discharge its obligations under the Refugee Convention outweighs the public interest in open justice.
Background
2. The appellant appeals the decision of the First-tier Tribunal judge (the judge) promulgated on 22 August 2025, dismissing the appeal against the refusal of his international protection and human rights claims.
3. The appellant is a national of Somalia and is a member of the minority Bajuni clan. He claimed asylum in the United Kingdom in July 2020 on the basis that he has a well-founded fear of persecution at the hands of Al-Shabaab who tried to recruit him. The primary issues for determination by the judge were whether the appellant was and still is of interest to Al Shabaab and if so, whether the appellant could safely and reasonably relocate within Somalia, specifically to Mogadishu.
4. The judge dismissed the appellant’s appeal, making some positive findings in relation to the credibility of the appellant’s account, but overall reaching a conclusion that inconsistencies in his account mean that it is not reasonably likely that he has a well-founded fear of persecution. The judge found that it would not be unduly harsh to expect the appellant to relocate to Mogadishu.
5. The appellant sought permission to appeal on two grounds, which was refused by the First-tier Tribunal. He renewed his application, maintaining the same grounds of appeal. The first ground was that although the judge referred to the correct burden and standard of proof, passages within the decision indicate that the judge had in fact applied the higher balance of probabilities standard than the correct, lower standard of a reasonable degree of likelihood. The second ground was that the judge erred in finding that the appellant would be able to relocate to Mogadishu by failing to give weight to relevant aspects of country guidance caselaw and in failing to make findings about whether the appellant could learn Somali before any facilitated returns support was exhausted and/or whether he could in fact receive remittances from his family even if contact with them were re-established.
6. The Upper Tribunal granted permission on both grounds finding that it is ‘just arguable’ that the judge erred in applying the balance of probabilities as the standard of proof, indicated by the use of the phrase ‘on balance’ at paragraphs 31 and 69. The Upper Tribunal found that it was just arguable that the judge erred by misapplying country guidance caselaw and proceeding on the assumption that it was for the appellant to show that his relatives could not support him without taking into account the evidence of their likely inability to do so.
7. The appeal came before me for a determination of whether the judge made a material error of law.
The hearing
8. I considered the composite bundle and respondent’s rule 24 response as well as the oral submissions from Mr Dingley and Mr Mullen in reaching my decision. The hearing was conducted by video and there was no objection to that being a suitable method of hearing.
9. Mr Dingley had not seen the rule 24 response but had been able to discuss it with Mr Mullen in advance of the hearing. I noted that there was in essence one paragraph which contained the respondent’s submissions and read it out to him. Mr Dingley confirmed that he was content to proceed.
Consideration
10. The appellant’s first ground of appeal is that the judge applied too high a standard of proof. It is asserted that the judge’s use of the phrase ‘on balance’ on more than one occasion is indicative of despite having referred to the correct lower standard of proof, the judge in fact applied the higher balance of probabilities standard when making findings. Mr Dingley submitted that the judge’s use of the phrase ‘on balance’ means that a lay person reading the decision could not be certain that the judge had in fact applied the correct standard. The respondent’s rule 24 response simply refutes that a higher standard of proof was applied, and Mr Mullen maintained that position.
11. The grant of permission notes that the judge referred to the correct standard of proof in paragraphs 19, 20, 38, and 45 of the decision. Paragraphs 19 and 20 are where the judge sets out the legal framework and correctly states that the standard of proof for the appellant’s asylum claim is ‘a reasonable degree of likelihood’; and that the standard of proof for his humanitarian protection claim is one of ‘substantial grounds for believing’.
12. At paragraph 31 of the decision, the first of those complained of by the appellant, the judge is considering inconsistencies in the appellant’s account. The consideration beings at paragraph 30. The judge goes through the appellant’s evidence in his witness statement and his oral evidence given in cross-examination. The judge expressly notes that an inconsistency does not mean that the appellant’s entire account should be discounted as untruthful and considers possible explanations for the inconsistency in the evidence. In my view the judge’s use of the phrase ‘on balance’ is an unfortunate one, because it is capable of creating uncertainty. However, I find that it does not indicate that the judge applied too high a standard of proof when assessing the appellant’s credibility. I find that the judge is simply considering the various pieces of evidence before him in the round, which he is required to do, and making a finding that the appellant’s credibility is damaged by the inconsistency. The judge gives significant weight to the inconsistency and gives reasons for doing so. Those reasons are not challenged.
13. The judge then goes on to consider various other aspects of the appellant’s evidence relevant to his findings on credibility. It is not until paragraph 38 where the judge reaches his overall conclusion on credibility, where he expressly reminds himself of the lower standard of proof and finds that it is not ‘reasonably likely’ that the appellant in fact has a fear of persecution. This is further support for my view that the judge did not in fact apply too high a standard of proof.
14. Paragraph 69 of the decision is the second place in which the judge uses the phrase ‘on balance’. At paragraph 67 the judge correctly directs himself that the test for relocation is whether it would be unduly harsh. Again, the judge’s use of the phrase is one that is unfortunate, but not indicative of an error of law. At paragraph 69 where the judge uses the phrase, he is specifically considering whether the appellant’s potential language barrier added to his other personal characteristics would mean that he had no real prospect of securing a livelihood on return. This is a reference to the correct standard, i.e. no real prospect. The judge’s consideration of the various factors is problematic for other reasons, which I discuss below. I am satisfied however that the judge applied the correct standard of proof.
15. I find that the judge applied the correct, lower standard of proof. Ground one does not disclose a material error of law.
16. Ground two centres on the judge’s consideration of whether internal relocation would be unduly harsh. It is asserted that the judge failed to properly apply relevant country guidance caselaw when considering the availability of remittances from family in Chula and the impact of his lack of Somali language. Mr Dingley submitted that the judge failed to consider whether it was reasonably likely that the appellant’s family would in fact be able to support him if he was able to contact them.
17. Although the judge was entitled to comment on the appellant’s lack of effort to try and locate his family members, the judge simply stopped his consideration there, finding that the appellant had failed to demonstrate that he would be unable to receive remittances from them. The judge failed to consider what support might reasonably be available given the appellant’s evidence about the system of support in kind in Chula; the lack of any contact between the appellant and his family for nine years; and the impact that the passage of time may have had even if a family member had been able to help fund the appellant leaving Somalia nine years before.
18. Mr Mullen submitted that even if it was found that the judge made an error of law in his approach to whether the appellant could receive remittances from family in Chula, his findings on internal relocation were nevertheless sustainable. Mr Dingley submitted that disregarding any possible family remittances would leave the appellant with only the funds he could receive from the voluntary returns scheme, and that the judge failed to consider properly or at all whether those funds would be sufficient to support the appellant while he learned Somali to a sufficient extent to enable him to support himself considering his particular circumstances. Mr Dingley submitted that the judge failed to have regard to whether the appellant could achieve that within a reasonable timescale. If he could not, Mr Dingley submitted that internal relocation would be unduly harsh.
19. As the judge recognised, this assessment was finely balanced and it is for this reason, having regard to the lower standard of proof that I find the judge’s errors in the assessment of the availability of remittances and the appellant’s ability to learn Somali within a reasonable timescale are material to his conclusions on internal relocation.
20. I find that ground two discloses a material error of law.
21. Mr Dingley suggested that if I found for the appellant on ground one, the appeal should be remitted to the First-tier Tribunal de novo. He submitted that if I found for the appellant only in relation to ground 2, it could be retained in the Upper Tribunal or remitted for re-determination of the question of internal relocation. Mr Mullen submitted that the appeal should be remitted.
22. While the issue for re-determination is a relatively narrow one, I am satisfied that the further findings of fact that will be required mean that it is appropriate to remit the matter to the First-tier Tribunal having had regard to what was said by the Court of Appeal in AEB v SSHD [2022], Civ 1512.
Notice of Decision
23. The decision of the judge promulgated on 22 August 2025 contains a material error of law.
24. The findings contained in paragraphs 21 to 49 of the decision are preserved.
25. The findings contained in paragraphs 50 to 71 of the decision are set aside.
26. The appeal is remitted to the First-tier Tribunal at Manchester by any judge other than Judge McDonna, for re-hearing on the sole issue of whether internal relocation to Mogadishu would for the appellant be unduly harsh.

J K Swaney

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 March 2026