Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005101
First-tier Tribunal No: PA/74489/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

12th August 2026

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

AF
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Bradley, Solicitor, AJ Bradley & Co
For the Respondent: Ms K Khan, Senior Presenting Officer

Heard at Field House on 11 February 2026

ANONYMITY ORDER

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 a decision of the First-tier Tribunal to refuse his asylum and human rights (articles 2 and 3 ECHR) appeal. The decision was sent to the parties on 15 September 2025.

2. Article 8 ECHR was not raised as an issue by the appellant either in his undated ASA or at the hearing before the First-tier Tribunal.

3. At the outset I confirm my gratitude to Mr Bradley and Ms Khan for their careful and clear submissions. There has been a delay in the promulgation of this decision, and such delay lies at my feet. The reason has been explained to the parties.

Anonymity Order

4. The First-tier Tribunal issued an anonymity order in respect of the appellant and neither representative requested the order to be set aside. I observe that the appellant seeks international protection and at the present time I consider on balance that his right to a private life, as protected by article 8 ECHR, outweighs the right of the public to know that he is a party to these proceedings. The latter right is protected by article 10 ECHR. Consequently, I reaffirm the anonymity order issued by the First-tier Tribunal. The order is confirmed above.

Relevant Facts

5. The appellant states that he is ethnically Tigrinya and a citizen of Eritrea. He asserts his historic family home to be in the Zoba Debub region of Eritrea.

6. The Tigrinya people are indigenous to the highlands of Eritrea, but now live throughout the country, as opposed to the Tigrayan people living in northern Ethiopia with whom they share ethnic and linguistic ties with both speaking Tigrinya.

7. As to the appellant’s personal history, he details that he resided with his uncle from a young age after the deaths of his parents in a road traffic accident. He moved with his uncle to Ethiopia in or around 2005 when he was aged 4. They remained there until 2021 when he was arrested by the Ethiopian authorities because of his ethnicity and being undocumented. He was imprisoned for ten months before his release and required to leave the country. He left Ethiopia in 2021 or 2022 and travelled to this country via Sudan, Libya and Europe. He unsuccessfully claimed asylum in Germany. Eventually, he crossed the Channel by small boat and reached this country on 8 July 2023. He fears returning to Eritrea because he will either be killed or required to undertake military service, having left the country illegally when a child.

8. The respondent has concluded that the appellant is a national of Ethiopia and his international protection claim founded upon being an Eritrean national is false. The respondent therefore considers that the appellant can safely return to Ethiopia.

9. The appellant denies he is an Ethiopian national and contends that if returned to Ethiopia the authorities would deport him to Eritrea.

First-tier Tribunal Decision

10. The hybrid CVP hearing came before the First-tier Tribunal sitting in Glasgow on 12 September 2025. The appellant was represented by Ms Lau, Solicitor, and the respondent by a Presenting Officer. The appellant gave evidence with the aid of an Amharic interpreter and was cross-examined. A witness, TF, gave evidence on the appellant’s behalf and was also cross-examined.

11. Noting the date of the asylum claim, the First-tier Tribunal properly concluded that section 32 of the Nationality and Borders Act 2022 was applicable to its consideration of the appeal and observed the guidance in JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC), [2024] Imm AR 717.

12. In the section of its decision titled ‘Credibility findings and reasons’, the First-tier Tribunal records oral evidence presented at the hearing. The assessment and reasoning commence from [46] onwards and conclude at [67]:

‘67. In such circumstances, there is no evidence before me that the appellant is not an Ethiopian national. He said he knew a few words of Tigrayan (sic) and could understand some of it. However, he speaks Amharic. He also said that he lived in a mixed community. In such circumstances it is likely that he would have come across words used by Tigrayan people. There is no evidence before me to show that the appellant ever was an Eritrean national. Without further evidence I am not in a position to say that he is an ethnic Eritrean and hence a Tigrayan (sic) who would be perceived as such if returned to Ethiopia. The appellant could attempt to obtain more information if he used a tracing service or social media to try to contact his cousins. He has not done so which tends to suggest that this is a fabricated claim.’

13. Nothing in this appeal turns upon the First-tier Tribunal erroneously understanding the appellant to be asserting Tigrayan ethnicity.

Grounds of Appeal

14. The appellant raises two challenges to the First-tier Tribunal decision which can properly be identified as:

i. Failure to give adequate consideration

ii. Failure to give fair notice

15. Upper Tribunal Judge Perkins granted permission to appeal by a decision dated 28 November 2025, observing that it is arguable that the First-tier Tribunal decided wrongly and unfairly that the appellant could obtain Ethiopian nationality.

16. The respondent filed a rule 24 response, dated 2 December 2025.

Submissions

17. Mr Bradley’s opening submission in respect of ground 1 was directed towards the first two paragraphs in the Tribunal’s holistic assessment, namely [46] and [47]:

‘46. The appellant might at first blush appear to be a stateless person. However, the background evidence before me indicates that the appellant could seek to acquire Ethiopian nationality, if he so wished. His detention was on account of being undocumented. If he and his uncle had elected to become Ethiopian, then he would have had documents and would have been able to live in Ethiopia without difficulty. This step is one which the appellant can still take on return there.

47. However, the appellant’s evidence is that he has attempted to go to the Ethiopian Embassy in London and has been rejected because he has no documents to say that he is Ethiopian. He could of course have obtained those all the years he was living in Ethiopia. It seems surprising that his cousins all speak both languages, but he does not and yet lived in the same household as them and was brought up by his uncle in loco parentis. His cousin was able to send money to him and enable him to travel on his journey to the UK through various European countries and Sudan and Libya.’

[Emphasis added]

18. Reliance was placed upon the extant country guidance decision of ST (Ethnic Eritrean – nationality – return) Ethiopia CG [2011] UKUT 00252 (IAC), particularly [100] and [101] which I cite below:

‘100. The interchange between the appellant and Mr Hart and the Ethiopian Embassy in December 2010 fits well with the expert evidence, both as to the procedures and attitudes of the London Embassy and elsewhere. In particular, it chimes with the evidence of Mr Schröder, that the authorities “had no interest whatsoever in getting back the 10,000 to 15,000 Eritreans who had fled Ethiopia for third countries” (paragraph 96 of Appendix A). The evidence of Mr Hart and the appellant is also compatible with the interviews held by Dr Campbell with Messrs Tesfaye and Haileselassie Suba.

101. The letters from the embassy, like the Nationality Proclamation, appear unremarkable on the surface. However, as the experts explained, in practice a very different view has often been taken by the authorities of what is meant by acquiring a foreign nationality, leading to the loss of Ethiopian citizenship. Those whom the authorities regard as ethnic Eritreans are often viewed as foreign and as has having lost Ethiopian nationality, in circumstances that can only be described as arbitrary. The appellant’s own position is a good instance. He was not old enough to vote in the independence referendum or to make any informed view as to acquiring Ethiopian citizenship. Yet, over ten years after the events that compelled him to flee Ethiopia, there appears to be no recognition in practice on the part of the Ethiopian authorities that he, and others in his position, are anything other than “foreigners”. The tendency of Ethiopian officials to blur the issues of ethnicity and nationality was a common thread in the evidence of both experts. Accordingly, not only is it wrong to expect, without more, that the Ethiopian authorities will today apply their laws to persons such as the appellant, in the way we would expect those laws to be applied if the relevant decisions under them were being made by the respondent and her officials in the United Kingdom; the fact that they will not is compatible with the arbitrary way in which the Ethiopian authorities have acted in the past.’

[Emphasis added]

19. The primary contention advanced on behalf of the appellant is that though the First-tier Tribunal’s attention was drawn to ST, it failed to adequately engage with the terms of the country guidance decision and consequently the lawfulness of its merits assessment falls ways. There was no engagement with the fact that the Ethiopian Embassy has a history of arbitrarily denying individuals who are ethnically Tigrinya the opportunity to confirm or secure Ethiopian nationality.

20. Also, as to [47] of the First-tier Tribunal’s decision, Mr Bradley submitted that the Tribunal materially erred as to fact when observing that the appellant ‘attempted to go to the Ethiopian Embassy in London and he has been rejected because he has no documents to say that he is Ethiopia’. Mr Bradley contended the true factual position as being that the appellant attended the Ethiopian Embassy and was not permitted to provide a copy of a letter prepared by his solicitors in respect of an application for ‘an Ethiopian ID card/ nationality’. The letter confirms the appellant’s history of residence in Ethiopia, his place of birth, and the names and place of birth of his parents, the latter being identified as being a town in Eritrea.

21. Ms Khan’s succinct response was that the First-tier Tribunal had appropriately addressed country guidance and considered all relevant circumstances.

22. Additionally, attention was also drawn by Mr Bradley to the application of a heightened ‘all’ test at [57], namely that the appellant ‘has not provided all the information which is potentially available to him, namely efforts to trace family members in Ethiopia’, with the First-tier Tribunal then observing that the appellant was required ‘to put some effort into doing that before this matter could be considered any further.’

23. Ms Khan submitted that the reference to ‘all’ should properly be considered as referencing back to [47], [48] and [49] of the challenged decision where the First-tier Tribunal made adverse findings as to the appellant having not having sought to trace his wife and cousins, not having sought evidence from his relatives in Ethiopia and accepting that his cousins spoke Tigrinya as well as Amharic when he did not.

24. The second ground is directed to a purported failure by the First-tier Tribunal to place the appellant on notice of a concern it held that resulted in an adverse finding. The appellant’s challenge is directed towards [66]:

‘66. However, it is not clear why the appellant and his uncle were arrested but none of his cousins were arrested. There is no suggestion that they were any different a situation from that of the appellant and his uncle. Clearly, they were still residing at large in Ethiopia on the occasions when the appellant contacted his cousin for further funds in 2023. Substantial funds were transferred by his cousins to the agents to assist transportation of the appellant on the various stages of his journey through Europe. This indicates that his uncle’s children were at large and had considerable sums at their disposal. This is inconsistent with the appellant’s uncle also being detained and the appellant being detained. There is no indication of why his uncle’s children would be treated differently from the appellant and their father.’

25. Mr Bradley informed this Tribunal that the First-tier Tribunal did not ask the appellant why his cousins were not arrested. If the concern had been raised, the appellant would have been able to address it. Both the appellant and his uncle were arrested at the garage where they worked, and his cousins were not present. Ms Khan did not dispute that the concern was not raised with the appellant at the hearing but relied upon the decision being read as a whole, and with this adverse finding being one of several found by the First-tier Tribunal this ground fell at the hurdle of materiality.

Analysis

26. At the outset of my analysis, I observe the well-established principle confirmed by the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784, at [72], that judicial caution and restraint is required when considering whether to set aside a decision of the First-tier Tribunal, which is a specialist fact-finding tribunal. A decision is to be respected unless it is quite clear that a tribunal has misdirected itself in law, and an appellate tribunal should not rush to find misdirection(s) simply because it may have reached a different conclusion on the facts or expressed themself differently.

27. I remain mindful that specific findings, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon them by the primary evidence.

Preliminary issue

28. There was a ‘Robinson obvious’ discussion during the hearing as to whether the First-tier Tribunal applied the correct standard of proof when making its finding as to the appellant’s nationality. The discussion was initiated by the Tribunal, with the parties noting the judgment of Lady Carmichael in Lindsey v Secretary of State for the Home Department [2023] CSOH 8, [2023] Imm AR 659, at [21], where the Court of Appeal judgment in RM (Sierra Leone) v Secretary of State for the Home Department [2015] EWCA Civ 541, at [35], was considered. In turn, when confirming in RM that the correct standard of proof that applies to the question of nationality depends on the legal issue involved, Underhill LJ was referencing Abdullah v Secretary of State for the Home Department [2013] EWCA Civ 42 and MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289.

29. If nationality is relevant to persecution, the lesser standard applies to a claim for international protection made on or before 28 June 2022 and by operation of section 32 of the 2022 Act the balance of probabilities applies to those claims made after this date. Otherwise, if nationality is not relevant to persecution, the balance of probabilities is to be applied.

30. It can properly be read that the First-tier Tribunal correctly applied the balance of probabilities test to the question of nationality by its general application of section 32 and the balance of probabilities to all findings of fact, though it would have aided if the Tribunal had been clearer that the standard was being applied to the issue of nationality as well as to the asylum appeal generally.

Ground 1

31. Ground 1 is directed to what is said to be a judicial conclusion that the appellant could have elected to become Ethiopian or to have evidenced that he is Ethiopian. The complaint is that the First-tier Tribunal should have placed into its assessment the difficulty, if not impossibility, of the appellant obtaining recognition of Ethiopian citizenship, if he possesses it, from the Ethiopian Embassy which has a history of arbitrarily denying individuals recognition of their citizenship and/or refusing to entertain such applications.

32. A secondary limb of the complaint is directed to the First-tier Tribunal’s assessment of the appellant’s evidence as to his visiting the Ethiopian Embassy in London and events that occurred on the day.

33. In AAR (OLF - MB confirmed) Ethiopia CG [2022] UKUT 00001 the Upper Tribunal drew together various guidance as to the requirement to follow country guidance decisions and circumstances in which they could properly be departed from. The Upper Tribunal considered the correct approach as to departure from extant country guidance in SMO, KSP & IM (Article 15 (c); identity documents) Iraq CG [2019] UKUT 00400 (IAC), at [209]-[211], as requiring an assessment to be undertaken as to: (i) whether material circumstances have changed; and (ii) whether such changes are well established evidentially and durable.

34. The country guidance decision in ST was noted by the First-tier Tribunal at [57] of its decision.

35. Before addressing the ground as advanced, I observe that the structure of the First-tier Tribunal’s assessment can be considered to adopt, unhelpfully, a non-linear form. Whilst properly appreciating judges embrace different writing styles, and that judgments and decisions are written primarily for the parties and others who understand the issues in the case, the adoption of a structure that follows, when required, a logical, chronological or step-by-step progression will aid understanding of core reasoning. A failure to do so does not per se undermine the lawful nature of a decision, but it heightens its susceptibility to challenge and may, on objective assessment, be identified as failing to address relevant issues.

36. The structural approach adopted in the First-tier Tribunal assessment in this matter commences at [46] with an observation that the appellant ‘at first blush’ might appear to be a stateless person, which was not a case advanced by either party. The same paragraph proceeds to observe that background evidence indicates the appellant ‘could seek to acquire Ethiopian nationality, if he so wishes’, which is suggestive that the appellant is not an Ethiopian national. The next paragraph recounts the appellant’s visit to the Ethiopian Embassy in London, and references ‘if’ the appellant and his uncle had ‘elected’ to become Ethiopian nationals, then the appellant would have documents enabling him to live in Ethiopia. Again, this observation is suggestive of the appellant not being an Ethiopian national. There is digression at [48] with the appellant’s explanation as to his inability to secure contact details of his cousins not being accepted. At [49], there is criticism that the appellant should have tried to contact his wife and cousins through the Red Cross or social media. The decision reverts to the nationality assessment with a finding at [50]:

‘50. I think it is more likely that the appellant has had documents and has simply decided to get rid of them in order to make a claim for asylum. ...’

37. I am satisfied that this can only be read as a finding that the appellant having been issued with genuine Ethiopian nationality documents and therefore is an Ethiopian national. This conclusion would be expected to end the assessment as to nationality, but the First-tier Tribunal proceeds to further consider the issue of nationality at [51] with the observation:

‘51. ... Accordingly, the country of return is Ethiopia. The appellant fears [being] returned there as he has is (sic) undocumented. However, if he has not sought to become a citizen of Ethiopia, then clearly the Ethiopian authorities would regard him as an alien. The appellant has to decide whether or not he wants to be a citizen of a country or be stateless’

38. The First-tier Tribunal therefore returned to a question that neither party was asking it to consider, namely whether the appellant is stateless. This is suggestive that the Tribunal had not understood having made a determinative finding as to the appellant being an Ethiopian national at [50].

39. There follows a digression at [52] with a finding that there is no independent evidence of the ill-treatment said to have been suffered by the appellant. At [53] it is noted that the appellant has provided no evidence as to his unsuccessful asylum claim in Germany and consequently, ‘it is not possible to know what account he gave to the German authorities’. The evidence of TF is rejected with reasons at [54] and an adverse finding is made as to the appellant not having contact with his wife at [55].

40. The reasoning then moves onto the appellant’s health condition in respect of articles 8, on which no case was advanced.

41. At [57], the First-tier Tribunal returns to the issue of nationality and notes the country guidance decision of ST, simply observing:

‘57. I note that the appellant’s representative referred to the decision of ST (Ethnic Eritrean – nationality – return) Ethiopia CG [2011] UKUT 00252 (IAC). However, this appellant has not provided all the information which is potentially available to him, namely efforts to trace family members in Ethiopia. He requires to put some effort into doing that before this matter could be considered any further.’

42. It is difficult to understand why the assessment of nationality and the applicability of country guidance is not to be considered because of failings by the appellant in the terms identified. In any event, despite the observation in the final sentence of [57], the Tribunal ultimately proceeded to make a finding as to nationality.

43. Consideration was then given over several paragraphs to the respondent’s ‘Report of a fact-finding mission, Ethiopia: situation of the Tigrayans, December 2024’ as well as the University of London's Refugee Law Clinic titled ‘Language, Culture and Citizenship Among Amharic-Speaking Eritreans and Changing Conditions for Eritreans in Ethiopia’, (Briefing paper No. 3) authored by Dr. Jennifer Riggan (May 2023). The sum of this consideration was a finding that it was not clear why the appellant and his uncle were treated differently to the appellant’s cousins, at [60], and at [65] an observation was made that in the circumstances ‘the background evidence appears to suggest that the situation in Ethiopia for return of a person such as the appellant would be grim’.

44. The final finding before the conclusion, at [66], relates to the failure of the authorities to arrest other family members and is the subject of challenge advanced by ground 2. The First-tier Tribunal then concludes at [67] that ‘there is no evidence before me that the appellant is not an Ethiopian national.’

45. I understand why the appellant’s written appeal is partially couched in terms directed towards the First-tier Tribunal considering that the appellant could have ‘elected to become Ethiopia’. As observed above, various paragraphs of the decision suggest that the appellant does not have Ethiopian nationality. However, the conclusion at [67] is clear in terms.

46. There is substance to the appellant’s challenge to the First-tier Tribunal’s assessment of his visit to the Embassy. The approach adopted to the judicial assessment of nationality, which can be said not to identify its reasoning with clarity, is fragile if one or more of the reasons provided are erroneous in law. The finding that the appellant is an Ethiopian national, and not Eritrean as he asserts, is founded upon his limited understanding of the Tigrinya language, a lack of evidence from his wife and cousins and the failure to trace these relatives prior to the hearing, the lack of detail as to his asylum claim in Germany and the lack of evidence as to the substance of TF’s own asylum claim. Ultimately, these factors may be sufficient for a tribunal to find against the appellant in respect of nationality. However, fairness requires that his contention that he was denied the ability to secure confirmation from the Ethiopian authorities that he is not a national of their country should be accurately placed into the assessment. It was a central element of his case as to nationality. I am satisfied that the appellant’s evidence as to his Embassy visit is not accurately recorded. Additionally, though the existence of guidance in ST is noted at [57], upon careful consideration it is not adequately clear that it has been considered. Indeed, [57] is a confused paragraph. In the circumstances, the identified failing is a material error of law that adversely infects the decision as to the appellant’s nationality. The decision of the First-tier Tribunal is properly to be set aside.

Ground 2

47. Consequent to ground 1 establishing a material error of law, there is no requirement for me to proceed to consider ground 2 as the appeal decision will have to be remade. However, for the short reason detailed below, I consider it appropriate to observe that the second ground identifies a material error of law.

48. The complaint concerns a failure by the First-tier Tribunal to place the appellant on notice of a concern that resulted in an adverse finding. Observing the weight the First-tier Tribunal placed upon the cousins not being arrested as undermining the appellant’s contention that both he and his uncle were arrested and detained, it was a concern that should have properly and fairly been raised with the appellant so that he could address it.

Resumed Hearing

49. I observe the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 0046 (IAC); [2023] Imm AR 558 and note the general principle that upon setting aside a decision of the First-tier Tribunal a case will be retained within the Upper Tribunal for the remaking of the decision.

50. However, I consider that the nature and extent of any necessary fact finding requires this matter to be remitted to the First-tier Tribunal: section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2000.

51. No findings of fact can properly be preserved.

Notice of Decision

52. The decision of the First-tier Tribunal sent to the parties on 15 September 2025 is set aside for material error of law, with no preserved findings of fact.

53. The appeal is remitted to the First-tier Tribunal sitting in Glasgow

54. The anonymity order made by the First-tier Tribunal is reaffirmed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 August 2026