Tribunal decisions

The decision

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th May 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

CM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E. MacKay, McGlashan MacKay Solicitors
For the Respondent: Mr K. Ojo, Senior Home Office Presenting Officer

Heard at Field House on 13 May 2026

OrderRegarding 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

Introduction

1. The Appellant appeals against the decision of the First-tier Tribunal, promulgated on 4 September 2025, which dismissed his appeal against the Respondent’s decision dated 26 March 2024 refusing his protection claim.

Background

2. The Appellant is a national of Sri Lanka. He claimed asylum in the United Kingdom on 29 December 2022.

3. The Appellant’s claim was advanced on the basis that he would be at risk on return to Sri Lanka by reason of his actual or imputed political opinion. He claimed that he had worked as a journalist in Sri Lanka, that through his work he came into contact with senior government figures and became privy to sensitive information, and that he passed information concerning government corruption or wrongdoing to P, a fellow journalist. He claimed that the Sri Lankan authorities subsequently sought him, and that he would be at risk on return.

4. The Respondent refused the claim on 26 March 2024. The Respondent accepted that the Appellant is a journalist, that the claim fell within the Refugee Convention, and that, if the Appellant were found credible, he would be at risk on return to Sri Lanka, there would be no sufficiency of protection and no viable internal relocation. The Respondent did not however accept the material factual basis of the Appellant’s claim, namely that he had come to the adverse attention of the Sri Lankan authorities or that he would be at risk on return.

Decision of the First-tier Tribunal

5. The appeal was heard before the First-tier Tribunal sitting at Glasgow on 23 June 2025. The Appellant attended and gave oral evidence with the assistance of a Sinhalese interpreter. He was represented by Mr Heeps, instructed by McGlashan MacKay. The Respondent was represented by Mr Cox, Home Office Presenting Officer.

6. A preliminary issue arose because the Appellant’s appeal had been listed on the same day as the appeal of P, the person to whom the Appellant claimed to have passed sensitive information. The two appeals had previously been “informally” linked by a Legal Officer, on the basis that they raised common issues and would be heard sequentially before the same Judge. The Judge refused a renewed application to link the appeals and proceeded to hear the Appellant’s appeal. P’s appeal was adjourned to be heard by another Judge.

7. The Judge recorded that the issues in dispute were whether the Appellant had given a credible account of being at risk on return to Sri Lanka and whether his sur place activities placed him at risk.

8. The Judge found that the Appellant had not given a credible account. The Judge placed adverse weight on a number of matters, including what she considered to be the vague nature of the Appellant’s evidence about the information allegedly passed to P, the absence of evidence from P, the absence of statements from the Appellant’s wife and mother, inconsistencies as to when the Appellant first became aware of threats in Sri Lanka, the return of the Appellant’s wife and daughter to Sri Lanka, the delay in claiming asylum, and the Judge’s assessment that the Appellant’s status as a journalist did not, in isolation, establish that he would be at risk.

9. The Judge also rejected the Appellant’s sur place claim, finding that the Facebook evidence attracted only limited weight and that there was insufficient evidence to show that his sur place activities would place him at risk on return.

10. The Judge dismissed the appeal on all grounds.

Grounds of appeal

11. The Appellant sought permission to appeal to the Upper Tribunal on four grounds, which can be summarised as follows:

(i) Ground 1 contended that the Judge failed properly to engage with the applicable country guidance in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). The Appellant argued that, given the Respondent’s acceptance that he was a journalist, and given his claim to have passed information critical of the Sri Lankan government to another journalist, the Judge was required to assess whether he fell within, or was at real risk by reference to, the country guidance category concerning journalists or others perceived as critical of the Sri Lankan authorities.

(ii) Ground 2 contended that the Judge applied the wrong standard of proof. It was argued that the Judge wrongly assessed risk by reference to the balance of probabilities, rather than the lower standard applicable to future risk in protection appeals.

(iii) Ground 3 contended that the Judge acted in a procedurally unfair manner in relation to P’s appeal. The Appellant argued that the appeals had been listed on the basis that they would be heard sequentially before the same Judge because of the overlap in their factual matrices, and that it was unfair for the Judge to adjourn P’s appeal to be heard by a different Judge and then place adverse weight on the absence of evidence from P.

(iv) Ground 4 contended that the Judge relied on speculation or conjecture when placing adverse weight on the return of the Appellant’s wife and daughter to Sri Lanka and on the Appellant’s delay in claiming asylum.

12. Permission to appeal was refused by First-tier Tribunal Judge Hamilton on 18 October 2025. The Appellant renewed his application to the Upper Tribunal.

13. Permission to appeal was granted by Upper Tribunal Judge Sheridan on 24 November 2025. Permission was granted on all grounds. In granting permission, Upper Tribunal Judge Sheridan considered it arguable that the Judge had assessed whether the Appellant faced a risk of persecution by reference to the balance of probabilities, rather than by applying the lower “reasonable degree of likelihood” standard required by section 32(4) of the Nationality and Borders Act 2022.

The hearing before the Upper Tribunal

14. The matter came before me at Field House on 13 May 2026. The Appellant was represented by Mr E. MacKay of McGlashan MacKay Solicitors. The Respondent was represented by Mr K. Ojo, Senior Home Office Presenting Officer.

15. There was no rule 24 response. Mr Ojo confirmed that the Respondent opposed the appeal on all grounds.

16. Mr MacKay relied on the grounds of appeal. He submitted that the Judge’s application of the balance of probabilities standard to the question of risk was a material error which infected the assessment of the Appellant’s claim. He submitted that the Judge failed to engage adequately with the country guidance concerning journalists in Sri Lanka, particularly where the Appellant’s status as a journalist was accepted. He further submitted that procedural unfairness arose from the Judge’s decision not to hear P’s appeal sequentially, followed by adverse reliance on the absence of evidence from P. He submitted that the Judge’s reasoning concerning the return of the Appellant’s wife and daughter, and the delay in claiming asylum, was speculative and formed part of an unsafe overall assessment.

17. Mr Ojo resisted the appeal. He submitted that the Judge had not materially erred in law. In relation to Ground 1, he submitted that the Judge had taken into account the Appellant’s status as a journalist and that the country guidance did not establish that all journalists in Sri Lanka are at risk. In relation to Ground 2, he accepted that some of the wording used by the Judge was unfortunate, but submitted that the decision, read as a whole, showed that the Judge rejected the factual basis of the claim and that any error was not material. In relation to Ground 3, he submitted that the Judge gave adequate reasons for refusing to link the appeals and that the Appellant had elected not to call P or provide a witness statement from him. In relation to Ground 4, he submitted that the Judge was entitled to take account of the return of the Appellant’s wife and daughter and the delay in claiming asylum as matters relevant to credibility.

18. At the end of the hearing, I reserved my decision.

Decision and reasons

19. I have considered the First-tier Tribunal decision, the documentation that was before it, the grounds of appeal, and the submissions made at the hearing before reaching my decision.

20. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2010] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19. I have kept these considerations in mind when coming to my decision.

21. I deal first with Ground 2, because it is the clearest error and was the basis expressly identified by Upper Tribunal Judge Sheridan when granting permission. The Judge correctly set out, at paragraphs 19 and 20 of the decision, the two-stage approach required by section 32 of the Nationality and Borders Act 2022 and by JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100 (IAC). However, when making findings, the Judge did not consistently apply that self-direction.

22. At paragraph 24(b), when considering the absence of evidence from P, the Judge stated that the Appellant had to prove “on a balance of probabilities that he is at risk on return to Sri Lanka”. At paragraph 27, the Judge stated that, given the date of the asylum claim, the appropriate standard for considering the credibility of his account is the balance of probabilities and then concluded that the Appellant had not shown “on the balance of probabilities” that he had a well-founded fear of persecution on return to Sri Lanka.

23. I accept that the Respondent did not accept the Appellant’s subjective fear or the material factual basis of his claim. The Appellant’s grounds overstate the position in that respect. The Respondent accepted that the Appellant was a journalist, that the claim, taken at its highest, engaged a Convention reason, and that, if the Appellant were found credible, he would be at risk on return and there would be no sufficiency of protection or viable internal relocation. The Respondent did not accept that the Appellant had in fact come to adverse attention or that he in fact feared persecution for the reasons claimed.

24. However, that does not cure the error. The question whether the Appellant would be at risk on return required assessment by reference to the lower standard applicable to future risk. The Judge’s repeated reference to the balance of probabilities in relation to risk and well-founded fear was not merely imprecise wording. It appears in the reasoning section itself and was used when assessing matters material to the Appellant’s claim. Although the Judge stated at paragraph 28, in the context of humanitarian protection, that she had reassessed the matter applying the lower standard, that short paragraph did not cure the earlier error in the asylum assessment. Nor did it explain how the lower standard was applied to the accepted and disputed facts.

25. I am satisfied that this was a material error. The Appellant’s claim depended upon whether there was a reasonable degree of likelihood that he had come, or would come, to the adverse attention of the Sri Lankan authorities by reason of his work as a journalist and his claimed disclosure of sensitive information to P. The application, or apparent application, of the balance of probabilities to the assessment of future risk was a material error. Ground 2 is therefore made out.

26. I turn next to Ground 1. I am not satisfied that Ground 1 is made out as a freestanding error of law. The Appellant is correct that his accepted status as a journalist formed part of the factual matrix, and that journalists or others perceived to be involved in the publication of material critical of the Sri Lankan authorities may fall within a risk category identified in GJ and Others. However, the Judge did not reject the appeal on the basis that such a risk category did not exist. Rather, the Judge rejected the factual premise upon which the Appellant sought to bring himself within it, namely that he had passed sensitive information to P, that this had caused adverse interest on the part of the Sri Lankan authorities, and that he would therefore be perceived as someone involved in the publication of material critical of the government.

27. The country guidance does not establish that all journalists in Sri Lanka are at real risk on return. The Judge expressly recognised at paragraph 24(f) that the Appellant had worked as a journalist and at close quarters with those in power, but found that this factor, in isolation, was insufficient to establish risk. In light of the Judge’s adverse findings on the core factual basis of the claim, I do not find that the absence of a fuller analysis of GJ, without more, amounted to a material error of law. Ground 1 therefore fails as a freestanding ground.

28. That said, the Appellant’s accepted profile as a journalist is relevant to the materiality of Ground 2. It did not itself establish risk, but it was part of the context in which the disputed facts and future risk had to be assessed.

29. I turn to Ground 3. The procedural history in this appeal is unusual. The Appellant’s appeal and P’s appeal had been listed on the same day before the same Judge, following an earlier direction that they would be “informally” linked and heard sequentially because of common issues. The Appellant’s case was that he had passed sensitive information to P. P’s evidence was therefore potentially material to the Appellant’s appeal, and the Appellant’s evidence was potentially material to P’s appeal.

30. On the day of the hearing, the Judge refused the renewed application to link the appeals formally and directed that P’s appeal be heard on a different day before a different Judge. I do not find that the refusal formally to link the appeals was, of itself, necessarily an error of law. The Judge was entitled to consider whether the appeals should be heard together and to take account of the fact that credibility was central in both appeals.

31. However, in the circumstances of this case, I am satisfied that procedural unfairness arose from the combination of the change in the anticipated procedure and the adverse reliance then placed on P’s absence. The appeals had been listed in a way which was capable of leading the Appellant and his representatives reasonably to expect that both appeals would be considered sequentially by the same Judge, with the Judge having sight of the overlapping factual issues in both claims. Having departed from that arrangement on the day of the hearing, the Judge was required to consider the implications of doing so.

32. The difficulty is not simply that P did not give evidence. It is that, having decided that P’s appeal would no longer be heard sequentially before her, the Judge then treated the absence of evidence from P as a significant adverse feature of the Appellant’s case, describing it as “puzzling and unexplained”. In my judgment, that was procedurally unfair. If the Judge considered that evidence from P was important to the fair determination of the Appellant’s appeal, it was necessary to consider whether some further procedural step was required before adverse weight was placed on its absence. That might have included adjourning both appeals, giving the Appellant a further opportunity to address the absence of evidence from P, or otherwise ensuring that the Appellant was not disadvantaged by the departure from the anticipated listing arrangement.

33. I accept that the Judge was entitled to note that neither the Appellant nor P had provided witness statements in support of the other’s appeal. However, that was not the end of the matter. The appeals had been informally linked and listed before the same Judge because of their asserted factual overlap. The Appellant and P attended on the day on the basis that both appeals would be heard sequentially by the same Judge, and their evidence would be considered within that procedural framework. The Appellant’s case depended, in substantial part, on his claim that he had passed sensitive information to P and that this had led, directly or indirectly, to adverse interest from the Sri Lankan authorities. P was therefore not a peripheral witness. His evidence was potentially capable of bearing directly on the plausibility and reliability of the Appellant’s core account. In those circumstances, once the Judge decided that P’s appeal would not be heard sequentially before her, fairness required the Judge to consider the consequences of that decision before placing significant adverse weight on the absence of evidence from P.

34. That is not to say that the Judge was bound to hear the appeals together, or that the absence of evidence from P could never properly be taken into account. The error lies in the combination of factors. The appeals had been listed on the basis of an identified overlap. That arrangement was altered on the day of the hearing. P’s evidence was potentially material to the core of the Appellant’s claim. The Judge then relied adversely on the absence of that evidence without adequately addressing whether the Appellant had been given a fair opportunity to meet the point. In those circumstances, Ground 3 is made out.

35. I have considered Ground 4 separately. I am not satisfied that it discloses a material error of law. The Judge was entitled to take into account the return of the Appellant’s wife and daughter to Sri Lanka and the delay in claiming asylum as matters relevant to the assessment of credibility. The weight to be attached to those matters was for the Judge, and the conclusions reached were within the range of findings reasonably open to her. Ground 4 amounts to little more than a disagreement with findings that were open to the Judge and is not made out as a freestanding ground.

36. Standing back, however, I am satisfied that the decision of the First-tier Tribunal involved material errors of law. The errors identified under Grounds 2 and 3 were not confined to discrete or immaterial aspects of the decision. They affected the assessment of credibility, the evaluation of risk, and the weight placed on the absence of evidence from P. The decision must therefore be set aside in its entirety.

Disposal

37. I find that the decision of the First-tier Tribunal involved the making of material errors of law. The decision is set aside in its entirety. Having regard to the guidance given in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and given the nature and extent of fact finding required, the appropriate course is for the appeal to be remitted to the First-tier Tribunal for a hearing de novo, with no findings preserved.

Notice of Decision
The decision of the First-tier Tribunal involved the making of a material 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 different judge.

S. Anzani

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 May 2026