Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case no: UI-2025-005100
First-tier Tribunal Nos: PA/62458/2023
LP/01355/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued

21st May 2026

Before

UPPER TRIBUNAL JUDGE PINDER
DEPUTY UPPER TRIBUNAL JUDGE SHEPHERD

Between

AS (AFGHANISTAN)
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Ferrin, counsel
For the Respondent: Mrs Abdul-Karim, Senior Home Office Presenting Officer

Heard at Birmingham on 27 April 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 him. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant appeals with permission against the decision of the First-tier Tribunal promulgated on 21 May 2025 in which the judge dismissed the Appellant’s appeal against a decision of the Secretary of State made on 23 November 2023; that decision refused the Appellant’s protection and human rights fresh claims made in response to a decision to deport him dated 13 December 2021.
2. The Appellant is a national of Afghanistan who entered the UK unlawfully on 6 October 2014. On 4 November 2019 he was convicted of grievous bodily harm with intent to do grievous bodily harm and violent disorder and was sentenced to 7 years’ imprisonment. On 28 January 2020 the Respondent served the Appellant with a notice of intention to make a deportation order. The Appellant was later served with a s.72 notice on 13 December 2021. On 7 January 2022 the Appellant responded with reasons as to why he should not be deported, with additional representations being made on 7 June 2022. In a decision served on 22 November 2023 (“the Refusal Letter”), the Respondent refused the Appellant’s protection and human rights claims.
3. The Appellant’s protection claim was made on the basis of having a well-founded fear of persecution/serious harm in Afghanistan due to imputed political opinion, having allegedly been kidnapped by the Taliban alongside his father and grandfather. He also claimed to have mental health issues.
4. The Respondent, in the Refusal Letter, rejected the Appellant’s claims for the reasons given therein. The refusal position was maintained in the Respondent’s review of 7 January 2025.
5. The Appellant appealed that decision. His appeal was heard and decided by the First-Tier Tribunal (“the Judge”) at Birmingham on 21 May 2025 (“the Decision”).
The First-tier Tribunal’s decision
6. The Appellant attended the hearing along with his representative counsel, Ms Ferrin. Mrs Abdul-Karim attended as Senior Home Office Presenting Officer. The Appellant gave evidence through an interpreter speaking Pushto.
7. The Decision recorded the issues in dispute at [23], paraphrased and summarised as follows:
(a) Rebuttal of s.72 presumption
(b) [Dependant on (a)] The Appellant’s A’s asylum claim and credibility of his account
(c) Articles 2 and 3 ECHR – asylum and medical claim based on PTSD
(d) Whether there are very compelling circumstances over and above those in EX1 and EX2
(e) Article 8.
8. The Judge’s key findings, with reference to the relevant paragraph numbers, were as follows:
(a) [28] The Appellant had failed to rebut s.72 so the Tribunal was unable to consider his asylum claim.
(b) [40] The Appellant’s removal would not be a breach of Articles 2 and 3 ECHR.
(c) [52] The Appellant’s year of birth was 1996 and he was not a minor when he entered the UK.
(d) [54] The Appellant’s account could not be relied upon. He had failed to show that his scarring occurred in the circumstances he described [55], although it did occur in Afghanistan [56]; it was not accepted that he had received current threats from Afghanistan [53]; the Appellant at the hearing said he was no longer on medication and there was some healthcare available in Afghanistan which he would have no issues accessing [56].
(e) There was a taskira which could be obtained again and there was family in Afghanistan whom the Appellant could approach [57].
(f) [58] It was not accepted that the Appellant’s removal to Afghanistan would trigger any mental health symptoms and he did not require any specific medication.
(g) [59] The Appellant did not have very compelling circumstances over and above those in EX1 and 2. [62] There was nothing in the evidence that would meet the requirements, and it was relevant that the Appellant had not been credible as to his fear of the Taliban and his father’s work with NATO.
(h) [64] It would be proportionate to interfere with any Article 8 rights the Appellant had established, strong factors being [66] his serious crime, the findings that Articles 2 and 3 were not engaged and there were no very compelling circumstances in his claim. [65] He had no children or relationship in the UK.
Appeal History
9. In the grounds of appeal dated 22 August 2025, the Appellant sought permission from the First -tier Tribunal to appeal to the Upper Tribunal on the single ground of “Failure to consider a material and ‘Robinson obvious’ point and/or making an irrational finding on a material matter”.
10. The basis for the ground was that the Judge did not consider the feasibility of the Appellant’s return to Afghanistan, which was a relevant and ‘Robinson obvious’ factor, as well as one which the Respondent was duty-bound to raise as a relevant policy - Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) relied upon. As feasibility of return was not addressed, and because the Appellant cannot actually return to Afghanistan, he is now left in immigration (actual) ‘limbo’ - RA (Iraq) v The Secretary of State for the Home Department [2019] EWCA Civ 850 relied upon.
11. On 23 November 2025, First-tier Tribunal Judge Pickering refused permission to appeal saying:
“2. The Judge made findings as to why the appellant has not rebutted the section 72 certificate. The Judge reached findings that the appellant was not at risk of treatment contrary to article 3 and that there were not very compelling circumstances as set out in 117C (6).
3. Whether the appellant would be left in ‘limbo’ was not a [sic] argument advanced as a principle controversial issue. In any event, the point advanced is a technical obstacle rather than a safe route point see HH (Somalia) & Ors v SSHD [2010] EWCA Civ 426.
12. On 17 October 2025, the Appellant applied to the Upper Tribunal for permission to appeal, renewing the previous grounds and adding:
(a) it was accepted that the Appellant had not raised the pause on returns as an issue before the Judge (repeating that it fell to the Respondent to do so). The pause on returns was a material consideration in the proportionality assessment under Article 8 ECHR.
(b) being left in limbo breaches the Appellant’s article 8 rights.
13. On 19 November 2025, Upper Tribunal Judge Perkins granted permission to appeal, saying:
“I give permission on all grounds.
The appellant is a citizen of Afghanistan who has been sentenced to 7 years imprisonment for an offence of assault causing grievous bodily harm with intent. I have noted paragraph 30 of the Decision and Reasons. He was arrested for attempted murder and was convicted after a trial.
He wishes to appeal a decision of the First-tier Tribunal dismissing his appeal against a decision of the respondent to refuse him leave to remain on “private and family life” grounds.
As I understand the grounds the appellant is not seeking to challenge the decision that he is not a refugee.
The main point taken is the respondent wrongly failed to tell the Tribunal that it was not possible to return the appellant to Afghanistan because “all enforced and voluntary returns [to Afghanistan] are paused” and, it said, this policy means that the appellant was in “immigration limbo” and that breaches his article 8 rights.
I am satisfied that the grounds are arguable.”.
14. On 23 December 2025 the Respondent filed a rule 24 response to the appeal, averring in essence that:
(a) The Judge did not err in law and (aside from the ground alleged concerning the feasibility of return) none of her substantive findings have been challenged.
(b) The issue of returnability was never raised by counsel and the principles of Lata apply. It was not a ‘Robinson obvious’ point. The issue of returnability is rather a technical argument as opposed to a substantive challenge or safe route point HH (Somalia) & Ors v SSHD [2010] EWCA Civ 426. The Appellant is seeking to argue points that were not before the Judge.
(c) The country guidance case of AS (Safety of Kabul) Afghanistan CG [2020] UKUT 00130 (IAC) is still extant as regards returns and the Judge did not seek to depart from it.
(d) The Appellant is a serious criminal offender and there was no delay in the decision-making process concerning him such that there is no immigration limbo. The grounds of appeal do not disclose any arguments as to how the four-stage test in RA Iraq would be met.
(e) The Appellant will be returned to Afghanistan as soon as logistically possible. The court’s focus rests on the determination as to whether the Appellant is returnable as a matter of law, not as a matter of practicality. The argued immigration limbo is an entirely self-imposed situation. The Appellant is a returnable foreign national offender; whilst an exact return date or time has not yet been proposed, this does not negate the overall position that he is an individual who is returnable to Afghanistan and whose return will be enforced as soon as practicable.
15. On 20 January 2026 the Appellant replied to the points raised by the Respondent and added in particular:
(a) Had the feasibility of return and prospect of limbo been raised by the Respondent with the Judge, she would have had to consider whether (for Article 8 purposes) the public interest in effective immigration is extinguished because, in practical terms, there is no realistic prospect of effecting deportation to Afghanistan within a reasonable period: RA (Iraq), the threshold for which was defined by the Upper Tribunal in R (on the application of AM) v Secretary of State for the Home Department (legal “limbo”) [2021] UKUT 00062 (IAC).
(b) It is unclear from the Rule 24 response whether the Respondent’s position is that in the near future there would be a prospect of removal. In contrast, the published policy is that “all enforced and voluntary returns [to Afghanistan] are paused”, with there being no Afghan Diplomatic Mission accredited to the UK that can issue travel documents.
16. The Appellant made an application under rule 15(2A) to adduce new evidence should the Decision be set aside to be remade.
The Hearing
17. The appeal came before us on 27 April 2026.
18. The submissions are set out in the record of proceedings. The main points were as follows.
19. Ms Ferrin requested that the anonymity direction be continued on the basis that a risk may still be posed to the Appellant on return by reason of the nature of the protection claim he had made and the facts alleged within it. Mrs Abdul-Karim confirmed that the Respondent was neutral in relation to anonymity.
20. Ms Ferrin confirmed that none of the Judge’s substantive findings concerning section 72, Articles 2 and 3 ECHR, the Appellant’s protection claim and Article 8 claims (aside from the question of feasibility of return) were being challenged.
21. Ms Ferrin took us through the grounds of appeal, adding little more of substance. She accepted that the Appellant could have raised the point about feasibility of return but she maintained that the Judge should have raised the issue herself as it was a ‘Robinson obvious’ point and/or the Respondent should have raised it because it was published policy and in the interests of fairness.
22. Ms Ferrin took us to the relevant parts of the authorities cited. She submitted that the prospects of the Appellant being able to return are so remote that keeping him in a state of limbo would result in a violation of his Article 8 rights, especially in consideration of his vulnerability and poor mental health as supported by the expert report of Dr Chisholm which was before the Judge. The Appellant does not have a valid passport and there is no authority currently able to issue one. Contrary to the rule 24 response, there is nothing to indicate even voluntary returns are possible and even if they were, the Appellant cannot redocument himself. The prospect of the Appellant having to be maintained at public expense for a significant period of time also weakened the public interest against him.
23. It was noted that Ms Ferrin sought to rely on an extract from the Country Returns Guide published on a government website (https://www.gov.uk/government/publications/country-returns-guide) (“the Website”). She conceded that this extract/Website was not in the evidence before the Judge. A discussion followed as to which Country Policy and Information Notes (CPINs) concerning Afghanistan were before the Judge. Ms Ferrin said there were three CPINs referred to during the hearing before the Judge as follows:
(a) CPIN Afghanistan: humanitarian situation version 3.0, August 2024
(b) CPIN Afghanistan: medical treatment and healthcare version 2.0, October 2021
(c) CPIN Afghanistan: fear of the Taliban version 4.0, August 2024.
24. It was agreed that copies would be sent to us following the hearing (see further below).
25. Ms Abdul-Karrim relied on the rule 24 response, adding of note:
(a) As feasibility of return was an issue that required evidence and submissions, it was not a point which could have been dealt with by the Judge of her own initiative and so cannot be ‘Robinson obvious’. Whilst voluntary returns were referred to in the Respondent’s review, the review was published prior to the Website page saying all returns were paused.
(b) On the Website, it says returns are ‘paused’, so any inability to return is not indefinite, and the Website does say if you want to return, you can contact the returns and logistics team.
(c) In terms of limbo, there has been no delay in dealing with the Appellant akin to the appellants in the authorities cited. However, even if the Judge had considered the lack of current ability to return, there is no way this could have tipped the balance in favour of the Appellant under Article 8 given the strength of the public interest against him. There simply were not any compelling circumstances capable of outweighing the public interest attached to his deportation, where the Appellant had committed a serious crime. None of the Judge’s findings concerning the wider Article 8 factors have been challenged, including mental health which the Appellant appears to be seeking to raise again today. Therefore, even if there is an error (which is denied), it is immaterial.
(d) The argument about a current lack of removals and the impact on public interest has been dealt with before by the Court of Appeal and Supreme Court in AM (Belarus).
(e) Whether to grant leave pending removal is a question for the Respondent and not the Tribunal. Financial independence could only have been a neutral factor.
26. Ms Ferrin replied to address these points. In particular, she argued that feasibility of returns was still a ‘Robinson obvious’ point, despite the basis for the Appellant’s asylum claim having been dismissed. It was a material consideration which should have been taken into account when conducting the Article 8 proportionality exercise, thereby rendering that exercise improper. The Appellant being in limbo and the consequences which would flow from that could amount to very compelling circumstances which could have tipped the balance. She emphasised that it was not the Appellant’s fault that he was not currently able to be returned and he is not doing anything to hinder any returns process, contrary to some of the appellants in the authorities cited.
27. Both parties agreed that, should material error be found, the majority of the Decision could be retained with only a small part to be remade and the most appropriate forum would be the Upper Tribunal. Ms Abdul-Karrim had no objection to the documents in the rule 15(2A) notice being admitted for any remake.
28. At the end of the hearing, we reserved our decision.
29. We subsequently received, by email from Ms Ferrin, links to the three CPINS mentioned above. Ms Ferrin confirmed that those concerning fear of the Taliban and medical treatment were before the Judge. She could not recall whether that concerning the humanitarian situation was before the Judge, but it was in force at the time of the hearing. Mrs Abdul-Karim also sent us, in parallel, copies of the same three CPINs.
Discussion and Findings
30. We remind ourselves of the important guidance handed down by the Court of Appeal that an appellate court must not interfere in a decision of a judge below without good reason. The power of the Upper Tribunal to set aside a decision of the First-tier Tribunal and to proceed to remake the decision only arises in law, if it is found that the tribunal below has made an error of law that is material to the outcome of the appeal.
31. Concerning feasibility of return, we turn first to the material that was before the Judge.
32. The Refusal Letter (as above dated 22 November 2023) refers in paragraph 47 to CPIN Afghanistan: security and humanitarian situation - April 2022, which in turn cited AS (Safety of Kabul) Afghanistan (CG) [2020] UKUT 130 (IAC) in saying that internal relocation was possible. Paragraph 51 of the letter refers to CPIN Afghanistan: Fear of the Taliban Version 1.0 April 2022, prior to a conclusion in paragraph 52 of the letter that the Appellant would not be at risk on return. Paragraph 66 refers to CPIN: security situation, Afghanistan, April 2022 leading to a conclusion in paragraph 68 that the Appellant could “return to Kabul or another location in Afghanistan”. Other sources cited in the letter concerning movement/relocation within Afghanistan are: in paragraph 74, the case of H. and B. v. The United Kingdom - 70073/10 44539/11 - Chamber Judgment [2013] ECHR 298 (09 April 2013); in paragraph 77, the US State Department 2022 Human Rights Practices Report (which addresses leaving but not entering the country); and in paragraph 78, the CIA World Fact Book accessed on 04 October 2023.
33. The Appellant’s skeleton argument (ASA) dated 22 November 2024 refers in paragraph 20 to CPIN Afghanistan: Fear of the Taliban Version 4.0 of 12 August 2024. In paragraphs 22 (and 24) the ASA states that “The passages of reasonableness of relocation to Kabul set out in AS (Safety of Kabul) Afghanistan CG [2020] UKUT 00130 (IAC) are still relevant” and also refers to CPIN Afghanistan: Medical treatment and healthcare version 2.0 of 12 October 2021 when discussing conditions in Afghanistan. Paragraphs 26-34 of the ASA discuss very compelling circumstances. We note there is no mention therein of any delay on the part of the Respondent in dealing with the Appellant and no mention of any practical difficulty in returning him.
34. The Respondent’s Review (as above, dated 7 January 2025) continues to rely on the Refusal Letter and addresses the issues raised in the ASA. Paragraph 6 states that “The A can also contact Voluntary Returns Service (VRS) for help and advice on returning home. The VRS can provide financial and practical support for those who are eligible.”
35. There is no mention of the journey from the UK to Afghanistan in any of the above documents and it is accepted by both parties that this issue was not raised in any of the statement of case documents before the Judge nor indeed at the hearing itself.
36. We do not know the exact date on which the decision was taken to pause all returns from the UK to Afghanistan, however it was agreed before us (with an extract produced in the composite bundle) that the Website was updated on 8 April 2025 to state:
“At present, all enforced and voluntary returns are paused. There is no Afghan Diplomatic Mission accredited to United Kingdom that can issue travel documents. Where a person may have travel documentation, and wishes to depart, please refer to RLO Tm 3”.
37. The Decision is dated 21 May 2025, just over six weeks after the Website update. During this time, there was no change to the applicable country guidance and the latest case remained, and remains, that of AS (Safety of Kabul) Afghanistan CG [2020] UKUT 00130 (IAC).
38. We note that [14] of the Decision states:
“The appellant uploaded two supplementary bundles, the first on the 16 May 2025 which was in response to the respondent’s review … The second is a supplementary bundle uploaded on 20 May 2025 ...”
39. This means that the Appellant uploaded two bundles of documents several weeks after the Website had been updated and the pause on returns had come into effect. However, the Appellant did not include in either bundle anything to indicate the position on returns had changed. Indeed there is nothing at all to indicate that the Appellant’s representatives were themselves aware of the change by the time of the hearing before the Judge.
40. In terms of the CPIN evidence before the Judge and/or in force at that time, we note that CPIN ‘Fear of the Taliban’ states that:
“… enforced returns from Western countries have not been occurring since the Taliban takeover.” (3.10.4 and 16.4.2-4)
“At least half a million people have returned to Afghanistan since the Taliban takeover, mostly from Pakistan. This figure includes people who have returned both voluntarily and involuntarily.” (3.10.5)
“…significant numbers of people had returned to Afghanistan from Iran and Turkey” (3.10.6)
41. Section 16 of this CPIN deals with the position of returnees generally, including both voluntary and enforced deportations.
42. The CPIN Afghanistan: humanitarian situation version 3, August 2024 refers in several places to the impact of documented and undocumented returnees, from Pakistan in particular.
43. We cannot see anything in the CPIN concerning medical treatment that is relevant to the question of the return journey from the UK.
44. In summary, the question of the Appellant actually being able to return to Afghanistan in practical terms was not one that was raised by either party before the Judge, whether in the documents or in submissions. The only document which hinted at there being any potential difficulty was the CPIN Afghanistan: Fear of the Taliban, which mentioned that enforced returns from Western countries had not been occurring, whilst also stating that returns from elsewhere (both voluntary and enforced) were taking place. The Website confirming a pause on returns was in existence but was not in the documents before the Judge and there is nothing to indicate anyone at the hearing was aware of it.
45. Both parties raise the case of Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), the relevant head notes of which state:
“1. The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal.
2. Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.
3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.
4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.
5. Whilst the Devaseelan guidelines establish the starting point in certain appeals, they do not require a judge to consider all issues that previously arose and to decide their relevance to the appeal before them. A duty falls upon the parties to identify their respective cases. Part of that process, in cases where there have been prior decisions, will be, where relevant, for the parties to identify those aspects of earlier decisions which are the starting point for the current appeal and why.
6. The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case.
7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.
8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.
46. We consider headnote 4 to be particularly relevant in this case. We find it was not for the Judge to go looking for any issues that had not been raised in clear terms by either party. We do not find that the single mention in the ’Fear of the Taliban’ CPIN referred to above (concerning enforced returns from Western countries) was sufficient to have prompted the Judge to raise a concern herself. She followed the country guidance which was extant at the time (and still is) stating that, depending on the circumstances and individual characteristics, relocation to Kabul could be reasonable. There was no obligation for her to go looking for any amended policies concerning the practicalities of facilitating returns to Afghanistan. The CPINs that were before her did not clearly indicate that returns could not take place (more that they were not at present taking place, for reasons which were not stated). The time between the Website being updated on 8 April 2025, and the hearing on 21 May 2025 was a matter of weeks. Whilst judges are of course obliged to keep updated (as best they can concerning time constraints and workload) with the latest legal developments within their jurisdiction, we consider it would go far beyond what is required for judges to check or be aware of up-to-the-minute operational changes, without clear evidence of an issue being raised before them.
47. We consider both parties are equally obliged to bring such issues to the attention of the Tribunal in accordance with Lata. In this case, we find it particularly surprising that the Appellant did not raise the point that returns were paused. It was his appeal. The point was in his favour. He had specialist representation whilst preparing his case and at the hearing and, as above, had filed two supplementary bundles with the Tribunal after the update to the Website. Despite therefore obviously having considered what further evidence was needed to make the Appellant’s case, it appears not to have occurred to the Appellant’s representatives to check the Website we are now presented with. In all the circumstances, if it did not occur to them, then we do not understand why it should have occurred to the Judge, whose remit was not to search for evidence but to decide the disputed issues that were brought before her.
48. The caveat to the above is points that are ‘Robinson obvious’. We do not agree that the feasibility of return was such a point in this case. R v Secretary of State for the Home Department ex p Robinson [1997] EWCA Civ 3090 held that (our emphasis in bold):
“It is the duty of appellate authorities 'to apply their knowledge of Convention jurisprudence to the facts established by them when they determine whether it would be a breach of the Convention to refuse an asylum seeker leave to enter as a refugee, and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum seeker or his representatives'.”
49. The Court of Appeal in the more recent case of Secretary of State for the Home Department v George [2024] EWCA Civ 1192 refers to Robinson in further saying that (again our emphasis in bold):
“The appellate authorities are not obliged to search for new points, this court said. 'If there was a readily discernible and obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submission on points which they have not taken but which could properly be categorised as "merely arguable" as opposed to "obvious". Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so there is a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point, we mean a point which has strong prospects of success if it is argued. Nothing less will do.'”
50. Ms Abdul-Karim cited the case of AL v Secretary of State for the Home Department [2026] EWCA Civ 370, para 91 of which states as follows (our emphasis in bold):
“Second, the narrow principle in Robinson means that in some Refugee Convention cases, the F-tT may be obliged to investigate and decide a point which an appellant has not identified. That principle does not apply in this case, not least because the F-tT carefully considered and rejected AL's claim under the Refugee Convention, and because AL's argument does not meet the stringent merits test articulated in Robinson”
51. In the Decision, the Appellant’s claim to be a refugee was dismissed prior to Article 8 being discussed. Ms Ferrin was at pains before us to point out she was not arguing feasibility of return as a strand of the Appellant’s asylum case, but that it should have been considered when considering proportionality under Article 8 and the statutory regime concerning foreign criminals.
52. The relevant case law is clear in saying that ‘Robinson obvious’ focuses on points of Convention law favourable to asylum seekers. Ms Ferrin accepts the Appellant does not argue the point in terms of his asylum claim. It is therefore not something which concerns Refugee Convention law. As above, we also do not consider the point to have been ‘obvious’ nor that it has been proven that it had a strong prospect of success. Even had the point been raised, in order to sufficiently address it, the Judge would likely have needed further evidence as to: the details of the wording on the Website (it appears to indicate people with travel documents may be able to return); what identity or other documents the Appellant would have needed in order to travel and whether he could get them; what the prospects were of the pause being lifted and when; and the impact on the Appellant pending that happening. This was not simply something which the Judge could have determined as part of the Decision without hearing further from the parties.
53. As to the Respondent being duty-bound to raise the point as one of policy, we agree that the Respondent could have been clearer on its position given the contradiction between the CPIN and the undisclosed Website in saying that returns were paused, while the Refusal Letter and Review were silent on the point but mentioned the Voluntary Returns Service. However, we accept that the appeal was to determine whether the Appellant was, as a matter of law, a refugee or at risk of serious harm contrary to Articles 2 and 3 on any return to Afghanistan (i.e. whether he had made out his claims which had been refused by the Respondent), not whether he could in fact be returned as a matter of practicality. We also accept that the Respondent’s intention throughout this matter has been to return the Appellant. Its policies in terms of those who it deems can be returned has not changed from the position stated in the CPINs.
54. The Respondent also refers to HH (Somalia) & Ors v SSHD [2010] EWCA Civ 426 to say that the issue of returnability is rather a technical argument as opposed to a substantive challenge or safe route point. Paras 83-84 state as follows (our emphasis in bold):
83. Leaving aside the mysterious verb "stay" at the end of the first paragraph, suggesting as it does that the applicant is already there but probably meaning "go to and remain in", there remains a question about what constitute "technical obstacles" to return. In our view these are probably confined to administrative difficulties such as documentation; they may include physical difficulties such as the lack of return flights; but the phrase does not readily signify a requirement to ignore risks to life or limb once the returnee is back in the country of origin, not only because it does not say so – it speaks only of return to the country of origin – but because to do so would be to permit the very thing that the Directive is designed to prevent, refoulement to a situation of real danger. Our view is that the mere fact that technical obstacles are excluded from consideration suggests that issues of safety during return are to be considered.
84.In conclusion, our provisional view is that the Directives read together require that the issues of safety during return (as opposed to technical obstacles to return) should be considered as part of the decision on entitlement. Only technical obstacles of the kind we have sought to identify may legitimately be deferred to the point at which removal directions are being made or considered. We are aware that the entitlements which appear to follow may be considered an unintended consequence of the Directives; but this, as we have said, is an issue for another day. Our provisional view, in the light of the Directive, is that if there is a real issue on safety on return the Secretary of State must engage with it in his decision on entitlement to protection, and his conclusion can be the subject of appeal. In any case in which the Home Secretary did not deal with safety during return (because he did not consider that any issue arose) but where the appellant raises a cogent argument that there might not be a safe route of return, the appeal tribunal would have to deal with that issue, possibly after calling for information from the Home Secretary as to his intentions. In any event, as it seems to us at present, the decision on entitlement must be taken within a reasonable time and cannot be left until the Home Secretary is in a position to set safe removal directions.”
55. We note this case later reached the Supreme Court (citation [2010] UKSC 49) which overturned the Court of Appeal’s decision to set aside the original AIT decision, however no criticism appears to be made by the Supreme Court of the reasoning in the above paragraphs, which we find do lend support to the Respondent’s position. The Appellant says he does not have the documentation necessary to make the journey, which falls squarely within the examples of ‘technical difficulties’ given by the Court of Appeal.
56. Overall, we consider the Respondent’s policies concerning the position on return to, and within Afghanistan, to have been set out in the documents that were before the Judge. These, as well as the intention to return the Appellant, remained the same, such that there was no need, considering the jurisdiction of the Tribunal in deciding whether or not the Respondent was lawfully entitled to refuse the Appellant’s claims, for the Respondent to have drawn the Judge’s attention to the Website stating that all returns were paused. The position on the Website could have changed, and still could change, at any moment but this did not affect the nature of the Appellant’s claims and whether he should be returned. Arguably the website does nothing more than confirm the position as set out in 3.10.4 and 16.4.2-4 of the CPIN: Fear of the Taliban that was before the Judge in any case.
57. To summarise, we find that feasibility of return was not a ‘Robinson obvious’ point and was not something that the Judge should, or could, have raised of her own volition. It was a point that either of the parties should have raised, had they wished the matter to be addressed. It follows that we find no error of law in the Decision.
58. Even if we are wrong about this, and the Judge erred in not considering the feasibility of return, we find that such an error would not have been material in any case for the reasons set out below.
59. The Judge’s findings as set out in paragraph 8 above have not been challenged. There was very little, if anything, on the Appellant’s side of the balance for the purposes of Article 8. He was a foreign criminal convicted of a serious crime who had been found to pose a risk to the community. He entered illegally and had never had any permission to be in the UK. He had no relationship or children in the UK. He was found not credible as to his reasons for claiming asylum and Articles 2 and 3 were not engaged. He was found to not need medication and removal to Afghanistan would not trigger any mental health symptoms. Financial independence and any ability to speak English were only neutral factors. Those findings of the Judge were not challenged, as we have noted above.
60. We cannot see how a temporary pause in actually returning the Appellant could have carried enough weight in the balancing exercise to outweigh all of the negative factors against him. We find that the case of R (on the application of AM (Belarus)) (Respondent) v Secretary of State for the Home Department (Appellant) [2024] provides support for this conclusion. It notes para 72 of RA (Iraq) v The Secretary of State for the Home Department [2019] EWCA Civ 850 in which Haddon-Cave LJ approved a statement by Simler J in R (Hamzeh) v Secretary of State for the Home Department [2013] EWHC 4113 (Admin) at para 50:
“… no general policy or practice has been identified or established by the Claimants to the effect that persons whose removal from the UK cannot be enforced, should, for this reason alone, be granted leave. It is not difficult to see why this should be the case. A policy entitling a person to leave to remain merely because no current enforced removal is possible, would undermine UK immigration law and policy, and would create perverse incentives to obstruct removal, rewarding those who fail to comply with their obligations as compared to those who ensure such compliance. Moreover, in the same way as immigration law and policy may change, so too the practical situation in relation to enforcing removal may change or fluctuate over time so that any current difficulties cannot be regarded as perpetual.”
61. Indeed, the Supreme court notes at para 68 of AM (Belarus) that:
“It is striking that the tribunal reached its conclusion about “compelling circumstances” in favour of AM as against the public interest even though it had found that AM had “minimal” private life in the UK (para 123) which was formed while he was present here unlawfully, so that section 117B(4) required that “little weight” should be given to it.”
62. We also cannot see that the Judge was under any obligation to address any ‘limbo’ period between the Appellant’s claims being dismissed and the actual date of return and we consider this argument to be misplaced. Nor is the Appellant’s appeal distinguishable from AM (Belarus) on grounds that he himself has not sought to obstruct removal, as Ms Ferrin sought to submit. It is clear from the citation above at para 60, that the primary rationale of the Supreme Court concerned the likely lack of perpetuity attached to any current difficulties surrounding particular countries and proposed removals to any of those countries.
63. Again this is something on which the Judge would have needed further evidence, however more importantly than that, any limbo period in respect of which a claim could be brought could not have arisen until after the outcome of the Decision. In other words, until the Judge dismissed the Appellant’s claims, he was not suffering the consequences of being in limbo (as discussed in such cases as RA (Iraq)) because he was still receiving the benefits which being an asylum seeker attracted pending his appeal being determined.
64. The Judge’s role here was to decide matters as they stood at the date of the hearing, those matters being the claims that had been refused by the Respondent. Any consideration of what would happen to the Appellant after the Decision (such as the impact on him of a lack of access to the NHS and welfare benefits, as well as the impact on his mental health) was outside the Judge’s remit for the purposes of the appeal before her. It is irrelevant that the Appellant’s own actions are not what has prevented his being removed. For the sake of completeness, we add that in any case para 64 of AM (Belarus) specifically says that Tribunals and courts should not try to follow the four stage test in RA (Iraq) as to the approach to be adopted in limbo cases. At 65 it says “The distinction introduced at the first stage between prospective limbo and actual limbo seems unnecessary and can mislead”.
65. It follows that we find the grounds of appeal not to be made out.
Conclusion
66. We are satisfied the decision of the First-tier Tribunal did not involve the making of any errors of law. The Decision therefore stands.
Notice of Decision
1. The appeal to the Upper Tribunal is dismissed. The Decision of the First-tier Tribunal of 21 May 2025 is maintained.
2. Due the nature of the proceedings involving a protection claim, we consider that the Appellant’s human rights in terms of safety from harm outweigh the requirement for open justice in this appeal such that an anonymity direction is made. Even though his claims have been dismissed, he yet has the potential to bring a further appeal.

Signed: L. Shepherd
Date: 18 May 2026

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber