Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005110
& UI-2025-005112

First-tier Tribunal No: PA/53251/2024
PA/50949/2024
LP/01399/2025
LP/01397/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of January 2026

Before

UPPER TRIBUNAL JUDGE KHAN

Between

AP & EP
(ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms Eva Doerr of Counsel, instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr Kevin Ojo, Senior Home Office Presenting Officer

Heard at Field House on 5 January 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. This is a decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the Upper Tribunal’). The Upper Tribunal is an independent decision-making body with powers given to it by an Act of Parliament. This decision is made in the context of the Upper Tribunal’s role in considering statutory appeals from decisions made by the First-tier Tribunal (Immigration and Asylum Chamber) (‘the First-tier Tribunal’).
2. The appellants are a father (‘AP’) and son (‘EP’), respectively. They are nationals of Albania. There is a lengthy procedural history which is set out briefly below.
3. AP entered the UK illegally via lorry on 31 May 2016 and later claimed asylum. His claim was refused and certified as clearly unfounded on 24 November 2016. The respondent maintained her refusal decision following reconsideration on 12 April 2017. AP appealed the decision to the First-tier Tribunal which dismissed his claim on 16 February 2018. His application for permission to appeal to the Upper Tribunal was granted on 13 September 2018 but his claim was ultimately dismissed on 17 December 2018. His application to the Court of Appeal was refused on 4 November 2019 and he became appeal rights exhausted.
4. AP made further submissions on 5 January 2021 which were refused with no right of appeal. A successful judicial review was made on 14 September 2023. On 15 January 2024, the respondent agreed to reconsider his further submissions in respect of an asylum claim. This was ultimately refused by the respondent, and AP appealed the refusal decision to the First-tier Tribunal.
5. In respect of EP, he arrived in the UK on 21 October 2012 and claimed asylum. His claim was refused on 20 November 2014 and certified as clearly unfounded. The respondent reconsidered the decision and refused the claim on 4 October 2017. An appeal to the First-tier Tribunal was dismissed on 16 February 2018 and EP became appeal rights exhausted on 14 November 2019. On 2 June 2020, EP filed further submissions which were refused and he appealed to the First-tier Tribunal.
6. By a determination promulgated on 18 September 2025, AP and EP’s respective appeals were dismissed, following a hearing, by First-tier Tribunal Judge Mill (‘the judge’).
7. The appellants now appeal to the Upper Tribunal with permission against the decision of the First-tier Tribunal by which their protection claims were dismissed.
8. Permission to appeal was granted by First-tier Tribunal Judge Swaney on 30 October 2025. Judge Swaney granted permission on Ground 1 specifically but did not restrict the grounds that could be argued.
9. The matter now comes before me to determine whether the First-tier Tribunal erred in law, and if so, whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
10. The appellants and the respondent were ably represented by Ms Doerr and Mr Ojo, respectively. I am grateful to them for their very helpful submissions.
Grounds
The appellants bring six grounds of appeal:
Ground 1 submits that the judge erred in law by treating the issue of benefits payments in Albania as undermining credibility. In this regard, the appellants argue that the judge made a mistake of fact as their evidence dealt with this issue, namely, that the benefits payments were obtained from Kukes by AP’s wife and brought to him when she visited Tirana but the judge failed to engage with the evidence.
Ground 2 submits that the judge erred by giving ‘no weight’ to evidence that the appellants’ family had not transferred their civil status registration. The appellants argue this is an error because the expert report explained that civil registration records demonstrate whether or not a family has relocated and this evidence was not properly engaged with; further the evidence was unchallenged and it was procedurally unfair to reject it without reasons or challenge; and, finally the judge speculated that the family could simply reverse registration, a conclusion, unsupported by country evidence and inconsistent with procedural fairness.
Ground 3 submits that the judge erred by failing to give adequate weight to the unchallenged evidence of Ms Sara Parllaku regarding confinement and the obstacles to reintegration. Alternatively, if the evidence was considered, the judge failed to provide adequate reasons for rejecting it contrary to the principles of anxious scrutiny.
Ground 4 submits that the judge erred by treating findings of the previous tribunal as a ‘fixety’ rather than a starting point in accordance with Devaseelan v SSHD [2002] UKIAT 00702. The appellants argue that the judge failed to consider that new, unchallenged evidence (including expert opinion and evidence of confinement) could justify departing from earlier findings.
Ground 5 submits that the judge erred by failing to conduct a proper holistic assessment of the expert evidence which constitutes a material error.
Ground 6 submits that the judge erred by failing to consider the appellants’ Article 8 ECHR claim which is not mentioned or referenced in the determination.
Discussion, Findings and Reasons
11. I have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but I will refer to any relevant arguments in the decision.
12. I bear in mind that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of a specialist tribunal are best placed to make factual findings: see HA (Iraq) v SSHD [2022] UKSC 22. 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 [2020] 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.
13. Before turning to address the grounds of appeal, I wish to record that Ms Doerr for the appellants indicated from the outset that while she relied on all six grounds of appeal, she considered the main grounds to be 1, 3, 4 & 6. She also indicated there was an application to adduce further evidence pursuant to rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Mr Ojo on behalf of the respondent indicated that he opposed the application on the basis that the documentation sought to be adduced now should have been adduced before the First-tier Tribunal. He also indicated that he relied on the respondent’s filed Rule 24 response dated 12 November 2025.
Ground 1 – Error Regarding Benefits Evidence
14. It is argued that the First-tier Tribunal Judge erred in law in treating the issue of benefits payments in Albania as undermining credibility. In this regard, the first appellant (AP) argues that the judge made a clear mistake as to fact, as the evidence dealt with this issue, namely, that the benefits payments were obtained from Kukes by AP’s wife and brought to him when she visited Tirana but the judge failed to engage with the evidence.
15. The documentation before the First-tier Tribunal hearing included a joint witness statement of AP, EP and MP (AP’s wife) dated 10 September 2025. At paragraph [30] it states, ‘In order to secure money we would have to go back home to Kukes to collect our benefits.’ At [38] AP specifically stated ‘Majlinder would come to see me to bring me money as I was unable to draw my disability benefits from Tirana as I was unable to register myself officially there. With this I was able to give Ali money to pay towards my keep. I only needed to pay towards food and bills and cleaning which Ali purchased for me.’
16. At [35] the judge found that AP received disability benefits while in Tirana. The judge stated ‘The issue as to whether or not the First appellant lived in confinement or hiding in Tirana between 2008 to 2016 is a material matter which continues to be a live issue in this appeal. It is clear that the First-tier Tribunal took account of the fact that the First Appellant lived in Tirana on his own account for a period of 8 years and was claiming disability assistance. … I similarly find that to be a highly relevant matter which has interestingly not been addressed in the appellant’s witness statements for this appeal. I find it highly unlikely that someone accessing disability benefits would not require to update their civil registration/place of domicile for the purpose of receiving communications and being subject to ongoing reviews/health assessments. I find this vague and unsubstantiated suggestion that this was possible to be implausible.’
17. In light of the evidence set out in the joint witness statement, the judge’s finding at [35] was plainly wrong. There is no reference or engagement with it whatsoever in the decision notwithstanding that it was clearly highly relevant evidence with the result that its omission arguably led to the judge concluding at [37] that ‘The first appellant’s claim to have been living in confinement/hiding is completely incredible and implausible.’
18. Ms Doerr further seeks to adduce fresh evidence to confirm that AP’s place of residence on his civil registration document was Kukes – not only in 2023 but also between 2008-2015 in light of the judge’s remarks at [36] that ‘No evidence has been provided which shows all or any changes to the Register throughout the years. All the Registration Certificate does is show the place of domicile as being Kukes as of 15 September 2023. The first appellant lived in Tirana between 2008 to 2016. On the basis of the totality of the evidence before me, I find as a fact that the change of domicile from one location to another in Albania is an easy administrative step to take by a citizen of that country and can be changed on more than one occasion. For all the reasons that the First-tier Judge earlier set out and, in particular, taking into account the lack of the first appellant’s credibility together with the fact that he accessed disability benefits in Tirana makes it highly likely that the Civil Registration information was updated to Tirana and has been reversed back to Kukes in a self-serving manner to assist the appellants in the appeal process.’
19. I have considered the appellant’s application to adduce further evidence and the respondent’s objection. I find there is no need for me to determine the rule 15 (2A) application as the appellants have already pointed to material evidence that was before the judge which supports this ground of appeal.
20. I have also considered the respondent’s Rule 24 response. It does not adequately address the apparent failure of the judge to engage with the evidence in the joint witness statement.
21. Having considered the evidence in the joint witness statement, I conclude that the First-tier Tribunal’s failure to specifically engage with it resulting in the drawing of an adverse credibility conclusion constitutes a mistake as to fact, which amounts to a material error of law.
22. I further conclude, given the importance placed by the judge on the adverse credibility finding (concerning the disability benefits) to dismiss the first appellant’s account of confinement in Tirana [37], it is arguable that the rest of the judge’s findings are infected and therefore the decision should be set aside on this ground alone. That said, I have nonetheless gone on to consider the other grounds (3, 4 & 6) primarily relied on by the appellants.
Ground 3 : Failure to apply anxious scrutiny to Sara Parllaku’s witness evidence
23. The appellants argue that the judge failed to apply anxious scrutiny in respect of the evidence of Ms Parllaku, or to provide any reasons for rejecting it.
24. In her witness statement dated 10 September 2025 which was before the First-tier Tribunal, Ms Parllaku, who is the daughter of the first appellant and the sister of the second appellant gave an account at [6]-[8] of verbal threats that she received on the telephone while at home in 2013 when she was aged 13 years and the impact it had on her living in confinement.
25. At [28] of the First-tier Tribunal decision, the judge stated ‘In terms of fresh evidence, I am invited to find the evidence from the daughter of the first appellant/sister of the second appellant to be credible and reliable and attach wright to it. She is a partisan witness. She is not independent. The credibility of the appellants has not been established. She has a clear motivation to support their appeals and to seek to confirm the background events upon which they rely. She does not address the issue as to whether or not her father was registered as living in Tirana on the Civil Registration Certificate. Such matter is out with her knowledge. She cannot speak firsthand to the suggestion about her father living in hiding all the time as she did not live with him. I find that she has simply offered up information supplied to her by the appellants and accordingly attach very limited weight to her evidence.’
26. It is at least tolerably clear that the evidence of Ms Parllaku was relevant to the issue of whether the appellants would face a real risk on return. Ms Parllaku’s witness evidence was not challenged under cross-examination by the respondent, yet the judge dismissed her evidence and attached very limited weight to it. It is clear from the judge’s remarks at [28] that the appellant’s lack of credibility infected the judge’s view of her evidence, as he states that the ‘credibility of the appellants has not been established.’
27. The weight to be accorded to evidence is the quintessential matter for the tribunal. While the judge was right to comment on the obvious evidential limitations of Ms Parllaku’s evidence, he failed to properly apply anxious scrutiny to her evidence where it was relevant to the core of the appellant’s case of a blood feud in circumstances where a previous judge of the First-tier Tribunal had accepted that there had been a shooting between AP’s uncle and members of the aggressor families; that AP had relocated to Tirana for over seven years; and, that EP had been threatened at school. Ms Parllaku’s evidence of confinement was relevant to her father’s claim of confinement and that she was not allowed to see him.
28. The respondent in her Rule 24 response submits that the judge was entitled to reach the findings that he did. I respectfully disagree. The judge’s findings were reached without applying anxious scrutiny to the unchallenged evidence of Ms Parllaku, which amounts to a material error of law.
Ground 4: Misapplication of the Devaseelan Principles
29. The appellants submit at [33] and [38] of the decision the judge misapplied the guidance set out in the authority of Devaseelan [2002] UKIAT 00702 as he considered that to engage with the appellants’ detailed submissions would ‘stray’ from what he was entitled to do following the guidance [33]. The appellants submit that an earlier judgement can and should be departed from where there is a principled and properly reasoned basis to do so; see R (MW) v SSHD (fast track) appeal: Devaseelan guidelines) [2019] UKUT 411 (IAC).
30. The appellants further submit that the judge found at [38] that the new evidence of the Civil Registration Certificate showing AP to be registered in Kukes rather in Tirana to be ‘irrelevant’ on the basis that the previous tribunal found as ‘a matter of fact, that there was no active blood feud’. As such it is submitted that the judge treated certain findings as a ‘fixety’ and the issues raised by the appellants as res judicata.
31. The respondent in her Rule 24 response submits that the judge did not materially err in law but applied Devaseelan appropriately and reached findings that were open to him. Additionally, Mr Ojo submitted there were other credibility issues which could not be overcome on the evidence to allow the judge to depart from the earlier decision. Accordingly, the judge did not treat the earlier findings as a ‘fixety’.
32. At [33], the judge stated that he was invited to re-evaluate the previous First-tier Tribunal’s determination of Judge Swaney dated 16 February 2018 by reassessing evidence which was before it, and to that extent a bundle of evidence including witness statements was placed before him. The judge stated, that, in essence, he was being invited to speculate about how the First-tier judge erred in assessing elements of the evidence and to come to a contrary view which he was not prepared to do as it would not have been in accordance with the Devaseelan guidance.
33. I have reviewed the appellants’ supplementary skeleton argument dated 1 September 2025 which sets out the appellants’ submissions regarding the areas of the previous tribunal decision which the judge was invited to reassess. The judge refused the invitation on the basis that it would lead him to ‘stray’ from what he was entitled to do under the Devaseelan guidance. However, he does not state in what way he was being asked to ‘stray’ from the guidance. Further, the judge fails to acknowledge that the case law establishes that his role was to conscientiously decide the case in front of him and that the correct approach was not to treat the guidance as a straitjacket, but as starting point. It was not estoppel or res judicata but fairness that needed to guide him: See SSHD v BK (Afghanistan) [2019] EWCA Civ 1358 at [44].
34. Having considered the submissions, it would appear that the judge did treat certain findings of the previous tribunal as a ‘fixety’ and the issues raised by the appellants as res judicata which amounts to a material error of law. In reaching this view, I acknowledge Mr Ojo’s submissions that there may not been enough evidence to dislodge the credibility issues. If this was the case, it was open to the judge to adopt such an approach and to provide adequate reasoning. However, he did neither.
Ground 6: Failure to Consider Article 8 ECHR
35. The appellants submit that the judge failed to determine their human rights claim under Article 8 ECHR despite the fact that it was particularised in the Appellants’ skeleton argument (ASA) and explicitly relied upon at the hearing.
36. The respondent acknowledges that there is no mention of the human rights claim in the decision but argues that the Article 8 ECHR claim would stand or fall with the protection claim and therefore having dismissed the appellants’ protection claim there was no need for the judge to go on to consider any claim under Article 8 ECHR.
37. Having considered the submissions, I am not persuaded that the appellants’ human rights claim would have been subsumed within the protection claim. This is especially the case in relation to EP who was a child when he arrived in the UK fourteen years ago and therefore would most likely have developed a private life. Accordingly, the judge would have had to consider whether the appellants would face very significant obstacles to integration. I find the failure to address the Article 8 ECHR claim is clearly a material error of law.
38. In light of the above material errors, there is no need for me to consider grounds 2 & 5. It follows based on the foregoing that the decision of First-tier Tribunal Judge Mill contained material errors of law and must be set aside.
39. I canvassed the parties in respect of further steps in view of a possible finding of a material error of law. The parties agreed that in those circumstances, the matter should be remitted to the First-tier Tribunal for a full rehearing. That is my view also. Given the critical nature of the conclusions on credibility no part of the determination can be preserved.

Notice of decision
The decision of First-tier Tribunal Judge Mill of 18 September 2025 did involve the making of an error of law and is set aside. The matter is remitted to the First-tier Tribunal for rehearing before a differently constituted tribunal with no findings of fact preserved.

K. A .Khan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

13th January 2026