Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005072
& UI-2025-005073

First-tier Tribunal No: PA/55532/2023
LP/03227/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

MS (Myanmar)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Kannaangara, Counsel, Instructed by David Benson Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 3 January 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals against the First-tier Tribunal decision promulgated on 2 September 2025. The Judge dismissed his appeal against the respondent’s refusal of his protection claim.
2. The respondent cross appeals against the decision to allow the appeal on Article 3 grounds. Permission to appeal was granted by First-tier Tribunal Judge Stevenson on 30 October 2025.
3. The two linked appeals are dealt with in this single determination. For the sake of clarity, I will refer to the parties in this decision as they were before the First-tier Tribunal.
Background 
4. The appellant claims to be a Rohingya Muslim, born in Gollindaya Village, Arakan, State, Burma (Myanmar) (Country expert report AB1294). His nationality and ethnicity are not accepted by the respondent. He claims to have entered the UK illegally using a false passport in June or July 2008. He claimed asylum on 14/06/2015 which was refused on 05/11/2015. His appeal to the First-tier Tribunal was dismissed by Judge Astle in a decision promulgated on 19/12/2016.
5. He was refused stateless leave consideration on 12/07/2017, a decision that was upheld following an administrative review. He lodged further submissions on 08/01/2020 which were refused by the respondent on 14/03/2023. His appeal to the First-tier Tribunal was dismissed by Judge Cameron in a decision promulgated on 2/09/2025.
6. The National Referral Mechanism found there to be positive reasonable grounds to believe the appellant to be a victim of modern slavery.
Anonymity Direction
7. The First-tier Tribunal made an anomymity direction and I have no reason to dispense with that direction.
The decision of the First-tier Tribunal 
8. Judge Cameron summarises Judge Astle’s findings and directs himself that these are his starting point pursuant to Devaseelan (2002) UKIAT 000702. As well as finding the appellant’s evidence to be inconsistent, Judge Astle found that his Rohingya Refugee Family Book did not belong to him. He states that one of the reasons that Judge Astle did not accept the Family Book was because the appellant did not provide a document from the UNHCR confirming that the book was genuine.
9. He records that the appellant has now provided an email from the UNHCR confirming that he was registered as a refugee in Bangladesh [39]. He notes that the email does not confirm that the Family Book is genuine.
10. The Judge concludes that the previous findings were not ‘interfered with simply because the appellant did register as a refugee in Bangladesh, particularly as there are no details as to why he was found to be a refugee.’[41] He states that the email does not ‘deal with the negative credibility findings Judge Astle made in relation to the Family Book’. He states ‘although it does give some weight to the appellant’s evidence, I am not satisfied that it is sufficient to outweigh the findings by Judge Astle’ [46]. As such he does not depart from the previous findings on nationality. The Judge makes express reference to the lower standard of proof.
11. In respect of the appellant’s Article 3 claim, the Judge correctly directs himself as to the test in AM (Zimbabwe) (2020) UKSC 17. The Judge accepts the qualifications of the psychiatric expert and notes that he considers the appellant to be at serious risk if he were returned. He concludes ‘I am not satisfied that he, in any event, would seek treatment if returned... The appellant’s mental health would therefore deteriorate significantly’ and there is a real risk he would attempt suicide on return. As such, the appellant meets the test in AM (Zimbabwe). No reference is made to which country the appellant would be returned to.
Grounds of Appeal 
12. The grounds of both appeals are succinctly and adequately summarised by Judge Stevenson set out below.
13. “The application for permission to appeal lodged on behalf of the appellant challenged the judge’s dismissal of the appeal in respect of refugee convention and humanitarian protection grounds for the following summary reasons:
• The judge misapplied the Devaseelan principles and failed to properly consider new evidence and explanations provided by the appellant.
• The judge overlooked UNHCR documentation and inadequately reasoned their findings in respect of the appellant’s claimed country of origin.
• The judge accepted the appellant’s claims of PTSD and depression for Article 3 ECHR purposes, however the judge failed to consider the extent to which this evidence might also have supported the appellant’s protection claim.
• The judge irrationally considered the appellant’s failure to seek an adjournment at the previous hearing in 2016 to obtain UNHCR documentation as impacting their credibility now.
• The judge inadequately reasoned their findings as regards the appellant’s efforts to trace their family members.
14. The application for permission to appeal on behalf of the respondent challenged the judge’s decision to allow the appeal under Article 3 of the ECHR as follows:
• The judge in allowing the appeal erred by concluding that the appellant would endure treatment contrary to Article 3 on the basis of his health conditions upon removal, despite not accepting the appellant’s claimed country of origin. The basis for the finding that there would be an absence of treatment is unexplained.
• The judge failed to consider that the psychiatrist’s conclusions were based on the expert’s acceptance that the appellant was a Rohingya from Myanmar and return to that country would aggravate his mental health.
• The judge erred in respect of the conclusion that the circumstances of the appellant’s removal would breach his Article 3 rights”.
15. Judge Stevenson noted that while some of the grounds were stronger than others, permission to appeal was given in respect of all issues.
Discussion
Appellate approach
16. I remind myself at the outset that there has to be appropriate judicial restraint in relation to the assessment of an appeal from the specialist First-tier Tribunal. As recently endorsed in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688, I acknowledge the approach in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 set out at [72].
17. I direct myself that the correct approach to assessing whether or not there is a material error of law in the Judge’s decision was explained by Brooke LJ in R (Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982 at [90] and I note the examples he sets out at [9].
The appellant’s appeal
18. I have dealt with the first two grounds of appeal together as they both relate to the application of the guidelines in Devaseelan to the new evidence before the Judge and his treatment of that evidence. To some extent they overlap with the third ground. The primary issue before the Judge was ‘whether the appellant has substantiated his nationality’ [12]. To determine this issue the Judge considered the evidence before him as well as the previous determination which he uses as his ‘starting point’.
19. The Judge’s assessment of the email confirming the appellant’s status appears to have been considered through the prism of the previous Judge’s findings because his assessment is that Judge Astle’s findings are not interfered with by the confirmation of his refugee status [41]. He does not consider that it is ‘sufficient to outweigh the findings by Judge Astle’ [46]. The Judge’s focus appears to be on the family book rather than his own assessment of the evidence in relation to the issue in dispute namely the appellant’s nationality (of which the family book is only one part).
20. I consider that it is beholden on a Judge to consider the evidence before him as it relates to the issue rather than on a focus on whether new evidence interferes with or outweighs the previous findings. As is made clear in Devaseelan, the previous determination stands unchallenged as an assessment of the claim the appellant was making at the time of the previous determination. However, the key guidance appears not to have been borne in mind, namely; ‘it is not binding on the second adjudicator, but, on the other hand, the second adjudicator is not hearing an appeal against it. As an assessment of the matters that were before the first adjudicator it should simply be regarded as unquestioned. It may be built upon, and, as a result, the outcome of the hearing for the second adjudicator may be quite different from what might have been expected from a reading of the first determination only’ [37] (my emphasis).
21. I accept the submission that the approach of the Judge in treating the new evidence as interfering with or outweighing the previous decision appears to be treating the hearing as an appeal against Judge Astle’s determination rather than reflecting Judge Cameron’s assessment of the evidence in relation to the issue in dispute. Whilst the Judge appears to be critical of the UNHCR email because it provides no details of why the appellant was a refugee, he does not make an assessment of what that undisputed fact means in practice in respect of the issue in dispute. Setting aside the point that it may not be for the UNHCR to explain why an individual becomes a refugee, if the Judge had given due focus on the agreed issue before him (nationality), he may have considered why he would have been a refugee in Bangladesh.
22. Similarly, the difficulty in the Judge’s approach is that there is no explanation as to how or why he finds that the UNHCR email gives ‘some weight’ to the appellant’s evidence or the extent of that weight in the context of the lower burden of proof [48]. The reference to the evidence not outweighing the findings of Judge Astle places the focus on the previous determination rather than the lower burden of proof upon the appellant in respect of the issue in dispute before Judge Cameron.
23. I agree with the appellant’s argument that the Judge does not provide adequate reasoning as to why being a refugee in Bangladesh would not demonstrate that he is from Myanmar rather than Bangladesh which is the issue at large. In addition, and directly related to this point, is the fact that the Judge does not address the email from UNHCR of 12/12/2023 which states, ‘we understand that you are a refugee from Myanmar.’ It may be that this is based solely on the appellant’s account, but the Judge does not address it.
24. Judge Cameron relies on Devaseelan and uses Judge Astle’s determination as a starting point. However, there is a lack of focus on the role of the Judge to assess the information anew in respect of the issue before him pursuant to the approach in Devaseelan set out at [20] above which amounts to a material error of law. This is because there are inadequate reasons why he places some weight on the UNHCR confirmation of the appellant’s refugee status without explaining the significance of that status or its overlap with the later email. His focus on evidence outweighing or interfering with Judge Astle’s decision and lack of reference to the ability of an appellant to build upon a previous decision demonstrate this erroneous approach.
25. Nothing in this decision should be construed as a commentary on the merits of the appellant’s appeal.
26. Ground 3 relates to inadequate assessment of the medical evidence and this also has an impact on whether the Judge has made his own assessment of the evidence relating to the appellant’s nationality. As Mr Kannaangara submits, the Judge expressly accepts the expert’s expertise and sets out without criticism his findings of PTSD and major depressive disorder [36]. The Judge appears to be relying on the expert’s conclusions at [56]. The report is predicated on the appellant’s mistreatment, and it states ‘there is a significant connection between [MS] mental health conditions and his traumatic experience in Burma (Myanmar) and Bangladesh.... and is directly related to witnessing violence in Burma’ (AB 1284 [11.2]). The Judge fails to grapple with on the one hand, his acceptance of the expert’s conclusions, and on the other apparently rejecting and not considering the causation set out in the report. Without a fuller assessment it is not possible to determine whether or not the Judge has considered such causation in his analysis of nationality. The lack of full reasons or such an assessment is a material error of law.
27. Based on my findings on grounds 1, 2 and 3, I do not need to consider grounds 4 and 5.
The respondent’s appeal
28. Turning to the respondent’s appeal, the Judge accepts the psychiatric evidence and that his health would deteriorate significantly on return. I agree with Mr Ojo’s submission that the Judge does not provide any analysis of the situation the appellant would find himself on return or which country he would return to. The country that the appellant is to return to is directly relevant to the test in AM (Zimbabwe) and the provision (or lack) of treatment.
29. The psychiatric report is predicated on the appellant’s removal to Myanmar (paragraph 11.8 AB1287). However, as the Judge has rejected the appellant’s protection claim that he is a Myanmar national, it may be inferred that his analysis assumes a return to Bangladesh (but is not clear).
30. He states that the appellant ‘would not have support on return’ [57] but provides no analysis of what this finding is based on.
31. The Judge states that the respondent has not specifically drawn his attention to any treatment available. There is no analysis of the Country Policy Information Note nor on what healthcare there would be. Whilst judicial restraint should be exercised and I should not assume the tribunal has misdirected itself just because every step in its reasons is not set out, the absence of reference to applicable case law dealing with suicide risk is of note. For example, MY (suicide risk after Paposhvili) (2021 UKUT 231, AM (Article 3 health cases) Zimbabwe 2022 UKUT 00131 or Y (Sri Lanka) v SSHD (2009) EWCA Civ 362. The latter sets out the factors, or tests that should be applied.
32. The absence of full analysis and the failure to provide full reasoning is a material error of law because the Judge does not set out any of the factors required and fails to identify which country the appellant would be returned to. He predicates his conclusions on the psychiatrist’s findings which are based on the possibility of removal to Myanmar. There are no reasons as to why he considers there to be support or what treatment would be available (or its absence). It may be that on full analysis, the Judge nevertheless reaches the conclusion that the test in AM (Zimbabwe) is met but without such analysis it is not clear and as such it is a material error of law.
Conclusion
33. The Judge’s decision involves a material error of law and the appellant’s appeal on Grounds 1, 2 and 3 succeeds. No findings are preserved.
34. The Judge’s decision in relation to the potential breach of Article 3 contains a material error of law and no findings are preserved.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law.
The decision of the First-tier Tribunal is set aside in its entirety with no findings preserved.
The appeal is remitted to the First-tier Tribunal to be heard de novo before a Judge other than Judge Cameron with a recommendation of 5 points.

V S Rae-Reeves

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

05/01/2026