Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005093

First-tier Tribunal No: PA/52893/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3rd March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

YD
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Collins
For the Respondent: Mr E Terrell, Senior Presenting Officer (error of law hearing)
Ms A Nolan, Senior Presenting Officer (continuation hearing)

Heard at Field House on 19 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. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. This is the appeal of YD, a citizen of Turkey born 26 August 2002, against the decision of the First-tier Tribunal of 10 September 2025 dismissing his appeal, itself brought against the Respondent’s refusal (on 23 January 2024) of his asylum claim (made on 1 September 2022).
Background
2. The Appellant's asylum claim is based on these asserted facts. He was a member of the Zaza community (who I understand to be ethnically distinct from the Kurds although typically associated with the same political causes). His father had had problems with the authorities when they lived in Bingol, before they moved to Istanbul in 2012. The Appellant first became involved with the HDP in 2018. On 24 June 2018 and 31 March 2019 he took part in activities related to election preparation. On 13 August 2019 he attended a demonstration in Kadikoy (a district in Istanbul) against the removal of three Mayors (including the Mayor for Diyarbakir) from their posts. He managed to escape the police following events at another demonstration in Kadikoy on 23 August 2019 though some others were arrested and detained. On 20 March 2020 he attended Newroz celebrations.
3. On 20 March 2021 he was arrested from a party vehicle having resisted arrest by officers seeking to confiscate their banners; he was tortured, accused of PKK membership notwithstanding his protestations to the contrary, and released without charge the next day. On 4 November 2021 he attended a press conference in Kadikoy to mark the anniversary of the detention of Selahattin Demirtas and Figen Yuksekdag. On 1 May 2022 he attended an event that was organised by unions, the HDP and other socialist and leftist parties. He would learn of these protests from the branch of the HDP in Pendik (in Istanbul). He would chant slogans and hold banners at these well-attended demonstrations.
4. On 5 June 2022 the police raided his family home on the basis they had received information that he was working for the PKK and spreading their propaganda. He was taken to the Anti-terrorist branch in Askaray, held two days and released upon agreeing to become an informant having been subjected to electric shocks. He was asked to provide information on PKK members and on who would be sent to join the group in the mountains. He was forced to sign a blank piece of paper and threatened with lengthy imprisonment if he did not agree to the proposal. His father now realised the Appellant should leave the country for his own safety. On 10 June 2022 the Appellant removed his SIM card from his phone and destroyed it. He remained at the home of family friends until leaving the country on 12 August 2022. He arrived illegally in the United Kingdom by a small boat on 22 August 2022. He had attended a couple of lectures at the Kurdish Community Centre in London but lacked the funds to travel to attend any demonstrations.
The Appeal to the First-tier Tribunal
5. Before the First-tier Tribunal the parties agreed that the Country Guidance case of IK Turkey CG [2004] UKIAT 00312 remained authoritative on the risks facing returnees given that the country evidence that the Turkish authorities continued to conflate the HDP with the PKK. Thus relevant considerations included the profile and activities of the asylum seeker; simply being a HDP member/supporter was not enough to create a risk of persecution. But holding an official post, or being an activist or vocally critical of the government’s approach to Kurds via social media, or otherwise having come to the authorities’ adverse attention due to suspected involvement with the PKK or support for greater autonomy for Kurdish people, could create a risk of arrest under the government’s broad interpretation of terrorism-related charges. The Respondent did not dispute that the Refugee Convention reason of political opinion was applicable if the Appellant's account was found credible.
6. The First-tier Tribunal directed itself that the first relevant question to determine following JCK Botswana [2024] UKUT 100 (IAC) was (leaving aside the accepted fact of any problems he faced arising from his political opinion) whether the Appellant held a subjective fear of persecution. Here that answer turned on whether his account of historical facts was true when assessing to the balance of probabilities standard. Having regard to that test, the Judge considered that the Appellant had displayed a reasonable knowledge of the HDP at interview and provided a consistent account of his attendance at certain events in Istanbul. However there was a paucity of evidence of activism. He had not been politically active in the UK in the espousal of the HDP cause. The only corroborative evidence of HDP activities were photographs of the Appellant and a female friend holding HDP leaflets on what he said was a date in March 2019, but this did not suggest that they were stopped by the police for political reasons. There was no cogent evidence that he had campaigned at any of the Newroz celebrations and the photographs of his attendance at those events did not suggest any leafletting activity; further, it was implausible that the HDP had organised these rallies given the vast scale of the surrounding Newroz celebrations.
7. There was a discrepancy in his evidence regarding events leading to his first claimed detention: as to his location when stopped by the police in March 2021 as he had referred to Newroz being celebrated in Yenikapi whereas at interview he had said he was in the district of Pendik when their banners were confiscated; and as to whether or not he attended hospital after the alleged ensuing detention. And it was not plausible that he would have been of sufficient interest to motivate a police raid on his family home in June 2022. This inference was drawn given the allegation of PKK associations was completely factually baseless, meaning there was no reason for it to provoke such a strong official reaction given the Appellant’s likely profile with the authorities or for them to imagine that he had any knowledge of PKK membership whatsoever. Besides, he had not mentioned a request to become an informant in his screening interview.
8. In light of those findings the First-tier Tribunal concluded that the Appellant had not credibly demonstrated a history of arrest, detention, being charged or mistreated such as to require hospital treatment. He had not suggested his family had had any political problems beyond his own in recent times. Thus applying the IK Turkey criteria there was no reason to think him at risk of persecution.

The Appeal to the Upper Tribunal
9. Grounds of appeal asserted that the First-tier Tribunal erred in law by
(1) Wrongly equating the tests of subjective fear and well-founded fear of persecution, contrary to JCK Botswana, which properly understood confined the test of matters to be assessed on balance of probabilities to Convention reason and the possession of subjective fear, but not to the assessment of historical facts.
(2) Failing to positively assess the Appellant as holding a subjective fear of persecution simply based on his Kurdish ethnicity, originating from a “conflict zone”, and lacking a passport, the latter factor being one which would ensure him being sent from the border officials to the airport police station where he would face persecution.
(3) Failing to appreciate that that same combination of characteristics arguably placed the Appellant at risk of persecution applying the IK Turkey criteria.
(4) Refusing to admit video evidence on the day of the hearing of the Appellant at a Newroz celebration in Istanbul and attending a press conference to mark the anniversary of the imprisonment of an HDP leader.
(5) Apparently accepting the Appellant had distributed HDP leaflets as per the photographs to which the Judge alluded yet failing to take that into account when rejecting his claim to be a party activist; and overlooking photographic evidence of the Appellant's participation in Kurdish events and demonstrations in London.
(6) Failing to have regard to the detailed knowledge of the HDP which the Appellant showed at interview.
10. Judge Sheridan granted permission to appeal to the Upper Tribunal on 24 November 2025 expressly citing the arguable force of the grounds relating to s32 NBA 2022, the possibility that the Appellant would hold a subjective fear based on being an Kurd without a travel document originating from a “conflict zone”, and the potential significance of the non-admitted video evidence. But he did not limit the grant of permission to those points alone.
11. For the Respondent Ms Nolan submitted that the First-tier Tribunal’s reasoning was impeccable and there was no clear record of any submission being pressed below as to the risks arising from the application of IK Turkey to the non-disputed facts of the appeal. The Tribunal was entitled to refuse to admit evidence if it saw fit and here there was no procedural unfairness.
12. For the Appellant Mr Collins submitted that a correct self-direction as to the law did not necessarily equate to the proper application of the relevant principles. The Appellant had attended the First-tier Tribunal with both videos that he wished to play available on his laptop but the Judge had refused to entertain the possibility. The photos of him with leaflets unequivocally showed some degree of political affiliation.
Analysis
13. I will take the issue of the video evidence first as it is the most clear-cut. It appears that the two videos were refused admission by the Judge at the hearing despite a Tribunal legal officer having granted the application to admit them into evidence. The possibility of videos being played was first ventilated on 15 April 2025; subsequently there is a note on the HMCTs online system stating, vis-á-vis an application of 11 August 2025 that “our client has videos to play at the tribunal and will bring in his own laptop”, that the response from the Tribunal is that “The application is marked as granted”.
14. Yet the First-tier Tribunal in its decision states that “The appellant was not asked about the video that was uploaded on 11 August 2025 without any accompanying explanation. Accordingly, this video was not admitted in evidence, and nor were the videos which the appellant said he had on his laptop.” Thus the Appellant was deprived of the opportunity of relying on corroborative evidence notwithstanding a proper application to adduce the relevant material which had in fact ostensibly been already granted.
15. Matters of fairness are to be assessed by the Upper Tribunal itself directly on appeal, without deference to public law notions of relevancy or rationality: SH (Afghanistan) [2011] EWCA Civ 1284. The Appellant should have been given an opportunity to play the videos that he wished to support his case, given there was no disadvantage to the Respondent who should have been on notice of the possibility for several months. Given the weight that the First-tier Tribunal placed on his level of political activism, one cannot be confident that a viewing of the video evidence would not have had some bearing upon the Judge’s thinking. As Moses LJ stated in SH (Afghanistan): “Tribunals, like courts, must set aside a determination reached by the adoption of an unfair procedure unless they are satisfied that it would be pointless to do so because the result would inevitably be the same”.
16. Some of the other grounds of appeal are less forceful. I am unconvinced that the Tribunal wrongly applied the learning from JCK Botswana inconsistently with how s32 NBA 2022 is generally understood to apply: that is to say, as setting down a standard for the assessment of historical facts on balance of probabilities. That is how the Respondent’s published guidance has indicated the provision should be interpreted and it has not so far been the subject of any successful challenge. Doubtless one day the courts will have to determine whether s32 truly takes aim at the assessment of credibility or at the narrower question of subjective fear alone (on one reading JCK Botswana provides some support for the latter notion), but this appeal is not the appropriate vehicle for that. As to the relevance of subjective fear, there doubtless will be appeals where the incontestable facts are such that an Appellant can succeed upon acceptance of only some elements of their claim. But I do not read the IK Turkey criteria as necessarily compelling a positive conclusion on risk based only on ethnicity, documentation and coming from a conflict zone: generally speaking some element of individualised profile such as to attract suspicion of separatist sympathies would also be required.
17. In any event the appeal must be re-heard afresh with no retained factual findings given the procedural unfairness that arose relating to the videos.

Notice of Decision
The decision of the First-tier Tribunal contained a material error of law.
The appeal is allowed to the extent it is remitted for re-hearing afresh before the First-tier Tribunal.

Mark Symes

Judge of the Upper Tribunal
Immigration and Asylum Chamber
23 February 2026