Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004893
First-tier Tribunal No: PA/04020/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13th April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

MM (Iraq)
(Anonymity Order made)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Schwenk, instructed by Batley Law Solicitors
For the Respondent: Mr M Pugh, Senior Home Office Presenting Officer

Heard at Field House on 19 March 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

No one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant seeks to challenge the dismissal of his appeal by First-tier Judge (FTJ) Alis in a determination promulgated on 30 July 2025. There was one ground of appeal, namely that the FTJ had erred in his approach to evaluating the credibility of the asylum-seeker’s account. That account, in summary, was that the Appellant, an Iraqi Kurd, had discovered his step-mother within the family home in a compromising position with an adult male, that the Appellant had in turn been accused of sexual assault against the step-mother as a way of deflecting from her adultery and that he now faced a real risk of honour-based violence from the step-mother’s side of the family.
2. Following a renewed application direct to the Upper Tribunal, permission was granted on the sole ground by UTJ Landes in a decision dated 21 November 2025.
3. In accordance with Directions, there was a Composite Bundle (99 pages) served ahead of the error of law hearing – page references in this determination are in the form [CB: XX], denoting [Composite Bundle: PDF page finder]. There was a Rule 24 reply by the Respondent dated 8 December 2025. On the day of the hearing, Counsel for the Appellant provided the well-known authority of Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11, as well as the Appeal Skeleton Argument (“ASA”) which had been relied upon in the FTT.
4. At the outset of the hearing, I raised with both parties the issue of whether or not there may be a “Robinson-obvious” error in the determination which had not been pleaded in the grounds: Robinson, R (on the application of) v Secretary of State for the Home Department & Anor [1997] EWCA Civ 3090. I invited submissions on whether the FTJ, having rejected the past account on balance of probabilities, , consistent with Section 32(2) Nationality and Borders Act 2022, obviously ought to have proceeded in the alternative to nonetheless evaluate the account on the lower standard still applicable to purported “past facts” when considering Article 3 ECHR/Humanitarian Protection, and provide reasoning if also rejecting it on the lower standard.
Submissions
5. Mr Schwenk, on behalf of the Appellant, argued that the FTJ had failed rationally to evaluate the credibility of the account and that there was an impermissible degree of reliance on “inherent implausibility”, ie. the FTJ’s own sense of what was plausible in this context, in particular the risks that the step-mother may or may not have been willing to take if engaged in a relationship outside of marriage. It was wrong, expressly or impliedly, to view this as a set of circumstances which were incapable of being believed. Having regard to Karanakaran, this was “at least category 3 evidence to which some credence could be given”.
6. As regards Article 3 ECHR, Mr Schwenk submitted that there was indeed a Robinson-obvious error at paragraph 40 in that the FTJ had merely stated that it was being rejected “for the reasons set out above” with no express adversion to, or express reasoning on, the lower threshold applicable.
7. Mr Pugh, on behalf of the Secretary of State, submitted that the FTJ had done more than merely find the risk-taking behaviour of the step-mother to be implausible on its own terms. Rather, the FTJ had had regard to all the evidence holistically and integrated into his reasoning additional factors such as the fact of the Appellant living in the same house and regularly sleeping there and whether or not the step-mother knew where the Appellant worked (on the evidence: she did not). Mr Pugh relied upon the Rule 24 reply which stressed that, even in cases turning on plausibility, a decision-maker is entitled to have regard to common sense and is not required to “suspend his own judgment”: Y v Secretary of State for the Home Department [2006] EWCA Civ 1223 [at 26]. Mr Schwenk countered that Y is ultimately an authority on the dangers of judges relying on their own life experience in evaluating “inherent implausibility”.
8. Mr Pugh also addressed me on the Article 3 ECHR issue. He submitted that the FTT was a specialist tribunal, that there is a negative Article 3 ECHR finding at paragraph 40 and that it could impliedly be understood to have been reached on the correct threshold.
Conclusions
9. In my view the FTJ, at paragraphs 33 to 35, has provided sufficient reasoning to justify and explain his rejection of the Appellant’s past account on the balance of probabilities. There was not an impermissible reliance on “inherent implausibility” in the sense criticised in Y. Rather, the FTJ has examined the account, pieced together different elements and rejected it in the round.
10. Further, FTJ has explicitly introduced nuance into his evaluation at paragraphs 33 & 34 by stating “I accept that people who have affairs to take chances… whilst I might have accepted as credible someone taking a chance in the knowledge no one is at the family home, I did not find the Appellant’s account credible as I did not find it credible the step-mother would invited [sic] a male over to the family home in the knowledge that this [was] where the Appellant lived and slept”. Read as a whole, the FTJ has made clear adverse findings and provided reasons. There is no error of law in the approach taken to credibility and I therefore dismiss Ground 1.
11. My concern with the determination, rather, relates to the approach taken to the post-NABA regime and the standard of proof in the alternative. The muddle appears to begin at paragraph 31 when the FTJ states that “this is a NABA case but given the Respondent conceded the Appellant satisfied the first part of the test, I accept I need to consider to the lower standard of proof whether it was reasonably [likely] the Appellant would be persecuted for a Convention reason”. It does appear that the Respondent “conceded” the “first part of the test” but that was merely that, in principle, taking the case at its highest, a Convention reason was engaged. The Respondent was plainly not conceding that, on the balance of probabilities, the Appellant had a well-founded fear of persecution because the heart of the dispute in the appeal was the credibility of the past account. That was the second part of the test. Nonetheless, the FTJ was right to identify that, in evaluating future risk for the final part of the test, the lower threshold was to be applied.
12. Then, on Article 3 ECHR, the FTJ simply states at paragraph 40 that “I also find article 3 ECHR was not engaged for the reasons set out above”.
13. I have had regard to Mr Pugh’s submissions, and I am mindful of the FTT’s expertise, but on the face of the determination itself I cannot be satisfied that the FTJ has turned his mind to the separate and distinct evaluation required of him by Article 3 ECHR in these circumstances. The reasoning and explication is not present. Indeed, on one reading, paragraph 40 may well relate to paragraph 37 which was a rejection of the Appellant’s Article 3 ECHR claim in so far as he was contending that he faced risk on return owing to a lack of documentation.
14. It may be that the FTJ was not assisted by the parties. I note that the Appeal Skeleton Argument relied upon in the FTT did lay out the new regime and JCK v Secretary of State for the Home Department (Botswana) [2024] UKUT 100 (IAC) in any meaningful way. But the new regime is not obscure nor is it the sort of issue which an FTJ cannot be expected to identify itself: Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC). It is also absolutely clear from the Respondent’s own guidance to its decision-makers, “Humanitarian protection in asylum claims lodged on or after 28 June 2022”, Version 9.0, 1 August 2023 that “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… you must note that your credibility assessment when considering humanitarian protection must be undertaken to the lower standard of proof of a ‘real risk’.”
15. This, in turn, is the approach required of First-tier Judges, consistent with the statutory regime and JCK. A past account may not satisfy an FTJ on the balance of probabilities for the purposes of asylum but the very same account may be sufficient on the lower standard within HP. On the basis of any accepted findings on the past account, the FTJ would then have been obliged to reassess the question of future risk. There is nothing in the determination to indicate that this stage has been borne in mind and applied by the FTJ. I deem this to be a Robinson-obvious analytical error which would have been capable of making a difference to the outcome on Article 3 ECHR.
16. There was some suggestion by Mr Pugh that the FTJ had made findings, in any event, that there was sufficiency of protection and/or internal relocation was available, such that any defect in evaluation of the past account (and/or risk) would be immaterial to outcome. While submissions on that are recorded at paragraph 25, it is not thereafter revisited in the findings, perhaps because the FTJ had concluded that there was no risk and therefore he was not obliged to consider the secondary issues. Paragraph 37 is addressed to the documentation issue (feasibility of return and any purported risk flowing from a purported lack of identity documents) rather than to internal relocation and/or sufficiency of protection.
17. I invited, on a provisional basis, submissions from the representatives on whether the appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal, were I to find no error in the asylum evaluation but a material error as regards Article 3 ECHR.
18. Mr Schwenk’s position was that the appeal should be remitted in toto. Mr Pugh submitted that the appeal should be retained by the Upper Tribunal with the asylum findings preserved, and with the UTJ then applying themselves to the task of evaluating the past account on the lower standard using only the material that is already in evidence, including the FTJ’s summary of the answers given during the FTT hearing.
19. The procedural course advocated by Mr Pugh is, in my view, beset with difficulties. By carving out the asylum findings and tasking a UTJ (or indeed an FTJ on remittal) with (re-)evaluating a past account without themselves hearing oral evidence would be procedurally and substantively suspect. A key component of evaluating a past account is, for a Judge, consideration of oral evidence and response to questioning. This is axiomatic, particularly in protection claims. It is not clear to me that a Judge could reliably and rationally evaluate the reasonable likelihood of the Appellant’s past account without hearing from him. I then come to a concomitant procedural issue: if a new Judge is to hear from the Appellant (again) and assess credibility (again), the preserving of the pre-existing adverse asylum findings in the determination under challenge, a determination which I have found to contain a material error of law on assessment of credibility (albeit not one on the asylum ground), would create an artificial and conceptually treacherous obstacle course for the next Judge.
20. This is not a case in which the further fact-finding relates to a separate issue. The factual matrix would be the same. There is complete overlap. It also throws up the additional quandary of the status of the adverse asylum findings and the weight, if any, to be given to them when the putative next Judge assess the Article 3 ECHR. Devaseelan did not envisage a new statutory regime (and ensuing guidance), comprising a higher standard of proof for past facts in an asylum claim but not for parallel Article 3 ECHR claims. This has created a tension in circumstances such as this when the Upper Tribunal must decide on appropriate disposal following an error of law hearing. I must, regardless, consider the means of disposal which is likely to ensure a lawful, fair and sustainable outcome for both parties, consistent with the jurisdiction of the UT and the procedure rules.
21. I have had regard to Section 7 of the “Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal” (SPT Ryder, 11 June 2018), Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512. It is appropriate in the circumstances of this appeal, having regard to the extent of the factual finding required on the next occasion, and the nature of the error of law I have found, that the appeal be remitted to be heard afresh, with no preserved findings.

Notice of Decision
The decision of the First-tier Tribunal, which dismissed the appeal, is set aside and remitted to be heard afresh by the First-tier Tribunal (IAC).

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 April 2026