Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004991

First-tier Tribunal No: PA/60497/2024
LP/00949/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 7th of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

SA
(ANONYMITY ORDER MADE)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Gayle instructed by Elder Rahimi
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 23 December 2025

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. The Appellant is a Kazakhstan national, whose asylum and human rights claims were refused by the Respondent in a decision dated 4 April 2024. His appeal against that refusal was heard by First-tier Tribunal Judge Sullivan (hereafter, “FTJ”) on 2 September 2025, with a determination promulgated on 12 September 2025. The FTJ dismissed the Appellant’s appeal on all grounds.
2. The Appellant sought permission to appeal to the Upper Tribunal. Permission was granted by First-tier Tribunal Haria, in a decision dated 24 October 2025.
3. At the error of law hearing, there was a 190-page composite bundle. Bundle references in this determination are in the format as follows: [CB: XX]: [Composite Bundle: page number]. There was a Rule 24 reply from the Respondent dated 29 October 2025 [CB: 17]. I retrieved the Respondent’s Review for the FTT from Judicial Case Manager (JCM/CCD) and it was emailed to the representatives by my clerk before the commencement of the hearing.
The ground of appeal on which permission had been granted
4. There was one ground of appeal, namely that the FTJ had fundamentally misconstrued the nature of the social media evidence, which had been presented in the form of screenshots from the Appellant’s “TikTok” account combined with oral evidence, leading to a purportedly erroneous finding at paragraph 25(j) [CB: 15] that “it is not reasonably likely that his TikTok activity in 2024-2025 has come to the attention of the Kazakh authorities or would now be discovered by them” and that, at paragraph 25(m), “he would in effect return to Kazakhstan as a person with no record … of having expressed any view critical of the Kazakh regime”.
Submissions & concessions
5. I was grateful for the helpful submissions of Ms Clewley, on behalf of the Secretary of State. She acknowledged that the Rule 24 reply had resisted the grounds in toto but nonetheless accepted in oral submissions that there was indeed an error by the FTJ in confusing or conflating the TikTok “home screen” with, inter alia, the “profile page” and/or the “feed” which would be viewed by users via the application’s algorithm. Ms Clewley helpfully took the Tribunal through the TikTok evidence, the “posts” for which there was a record and elucidated the difference between the TikTok’s evanescent algorithm-driven feed, as experienced by third-party users, and the more fixed, personal profile element generated by those posting videos.
6. Ms Clewley nonetheless argued that the error was not material to the outcome of the appeal since, at paragraph 25 and elsewhere, the FTJ had made a number of findings on absence of future risk which were secure and unaffected. In short, it was not reasonably likely that there will have been post-departure surveillance and the Appellant was not obliged on return to be open about the sur place activity or, indeed, could delete the content.
7. Mr Gale, on behalf of the Appellant, emphasised that by misunderstanding the nature of TikTok, the FTJ had failed to grasp – or rationally reject the contention - that a search for the Appellant’s name would lead to a profile page which plainly shows the posts for which he was responsible, including that which related to the former defence minister. Further, the evidence in the Supplementary Bundle attested to the growing number of views that the post was still garnering, regardless of the Appellant’s number of “followers”, a matter on which the FTJ had also found herself muddled. In that context, paragraph 24(m) of the determination could not stand. It was simply wrong to conclude that “he would in effect return to Kazakhstan as a person … with no record of having express[ed] any view critical of the Kazakh regime”. There was such a record.
8. As to materiality, Mr Gale submitted that, had the FTJ construed the nature and significance of the TikTok evidence rationally, then this was capable of affecting the approach taken by the FTJ to both credibility of the Appellant’s political views and the reasonable likelihood of risk on return.
Conclusion
9. I find that the ground of appeal is made out and that the determination needs to be set aside owing to a material error of law.
10. The FTJ was adamant in her (mistaken) assessment of the TikTok evidence. It led her to opine, at paragraph 22(c) that “I am not satisfied that he is recorded on TikTok as the creator of any video or the author of any caption. It follows that I am not satisfied that anyone monitoring the Appellant’s TikTok account would conclude that he is responsible for any particular video or content”; and, at paragraph 22(d): “I am not satisfied that what appeared on the Appellant’s TikTok home screen or feed at any given time would be duplicated on the home screen or feed of any other user or could be reproduced by anyone seeking to access the Appellant’s account on another occasion”; at paragraph 23: “I am not satisfied that any record of this TikTok activity is reasonably likely to be accessible to others”; culminating in paragraph 25(j): “it is not reasonably likely that his TikTok activity in 2024-2025… would now be discovered by [the Kazakh authorities”.
11. The issue before me, given the Respondent’s concession, was whether the TikTok error was material. I remind myself that an error will be material if it is, at the very least, capable of having made a difference to the outcome.
12. The FTJ made a number of explicit links between her assessment of the TikTok evidence and multiple findings which she herself considered central to the dismissal of the appeal. I agree with Mr Gale that, in revisiting the TikTok evidence, a Judge would be entitled to revisit those same findings and, in turn, those findings are relevant both to the credibility of the Appellant’s account of sur place activity and the reasonable likelihood of there being a public record of those activities. While Ms Clewley countered that HJ Iran applied and the Appellant could be expected to delete the TikTok profile, this was not an argument on which the FTJ ever made findings – albeit I note it was at least ventilated at paragraph 20 of the Respondent’s Review, dated 11 September 2025. It is capable of going either way in any remaking.
13. In my view, once paragraphs 24(j) and (m) are problematised by the error of law, the other parts of the fact-finding are tainted, including the FTJ’s scepticism about the Appellant’s degree of political commitment and knowledge.
14. I note that the Secretary of State, in her original refusal letter and the Review ahead of the FTT hearing, had accepted that the Appellant was “previously detained in Kazakhstan and was monitored from an unmarked car” and “that social media users face criminal sanctions”. There was little dispute that the space for political dissent in Kazakhstan is narrow.
15. I heard submissions on appropriate venue. Ms Clewley submitted that the case should remain in the Upper Tribunal with preserved findings of fact. Mr Gale submitted that the appeal ought to be remitted, not least because the effect of the material error will have been to unravel the central findings of fact at paragraph 25.
16. 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. Remittal to the First-tier is not the usual course but I find that it is appropriate in the circumstances of this appeal.
17. For the avoidance of doubt, I have rejected the Respondent’s submission, made at paragraph 3 of the Rule 24 reply, that the ground of appeal was not compliant with Rai & Anor v Secretary of State for the Home Department (Grounds of Appeal - Limited Grant of Permission) [2025] UKUT 150 (IAC). The ground of appeal was clearly framed and appropriately identified the issue.

Notice of Decision
The decision of the First-tier Tribunal is set aside for error of law and I direct that the appeal be remitted to the First-tier Tribunal de novo, for the consideration of any Judge except FTJ Sullivan.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 December 2025