Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005115
First-tier Tribunal: PA/65548/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

K H
(Anonymity decision made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms A Bhachi, Counsel instructed by
For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer

Heard at Field House by CVP link on 19 March 2026

DECISION AND REASONS
1. The Appellant appeals with permission against the decision of the First-tier Tribunal dated 18 September 2025 dismissing his appeal against the Respondent’s decision refusing his protection and human rights claim.

Background
2. The Appellant, a citizen of Afghanistan, claimed, in summary, that he was at risk of persecution by the Taliban on account of his imputed political opinion arising from his perceived association with the former Afghan government forces.

The appeal to the First-tier Tribunal
3. The Appellant’s appeal against the Respondent’s decision was heard by First-tier Tribunal Judge Green in an oral hearing on 14 August and 17 September 2025. The Judge found that the Appellant had not established a well-founded fear of persecution or risk of serious harm on a return to Afghanistan and that his return would not place the United Kingdom in breach of Article 8 ECHR.

The appeal to the Upper Tribunal
4. First-tier Tribunal Judge Swaney granted permission to appeal on 30 October 2025 in the following terms:
1. The appellant seeks permission to appeal (in time), against a decision of the First-tier Tribunal who, in a decision and reasons promulgated on 18 September 2025, dismissed his appeal against the Secretary of State’s decision to refuse his international protection and human rights claims.
2. The grounds assert that the Judge erred in (i) failing to apply the correct test when determining whether a Convention reason was engaged; (ii) failing to have proper regard to background evidence and in making findings inconsistent with relevant country guidance; (iii) placing undue weight on minor inconsistencies; (iv) failing to apply the guidance in Tanveer Ahmed [2002] UKIAT 00439 in relation to documents relied on by the appellant; and (v) failing to properly consider articles 3 and 8 of the ECHR and/or failing to give adequate reasons for conclusions reached.
REASONS FOR DECISION
3. Ground (i) is arguable for the reasons set out in the grounds of appeal. The judge made detailed findings about the appellant’s credibility before making a finding that the claim did not engage a Convention reason and dismissing the asylum appeal for that reason. This is contrary to the approach as set out in JCK v SSHD (Botswana) [2024] UKUT 100 (IAC), which requires the judge to consider on the balance of probabilities whether the appellant has a protected characteristic which could cause them to fear. As the Upper Tribunal said at [13]: ‘It is something that must be evaluated on the evidence in the round, but care should be taken not to automatically reject, at this first stage, a claimed characteristic by reference to the overall credibility of the claim.’
4. The grounds of appeal disclose an arguable error of law. The grant of permission is not limited

The hearing
5. Ms Bhachi referred to the Appeal Skeleton Argument and the rule 24 response. The Respondent concedes that there is an error of law and accepts there is a Convention reason but asserts that the error is not material. The Judge clearly confused Stage 1 and Stage 2 of the JCK test as shown at Paragraphs 33 and 39 of the decision. This clearly infects his overall credibility assessment including the finding that the Appellant’s profile was peripheral. In making this finding the Judge relied on minor inconsistencies in the Appellant’s account. Ground 4 has particularly strong merit. This relates to the late disclosure of letters which the Judge has wrongly said do not name the Appellant.
6. For the Respondent Mr Parvar said that the error of law regarding the application of JCK was not material. The Appellant has what he wants in respect of Stage 1. Convention reason is accepted and the question becomes whether on the balance of probabilities he fears persecution for that Convention reason. Mr Parvar said that grounds 2 and 3 had limited merit. Dealing with ground 4 it became apparent that the documents the Judge was referring to were not the relevant documents submitted for this appeal. As a result Mr Parvar accepted that there was a material error in the decision. Both representatives agreed that this error was fundamental to the decision made and that it would be appropriate to remit to the First-tier Tribunal with no findings preserved.
7. I reserved my written decision.

Findings – Error of Law
8. As error of law was conceded during the course of the hearing I am only going to deal briefly with the grounds. I will deal with Ground 1 because I am satisfied that the argument put forward both in the ASA and in oral submissions was fundamentally wrong and Ground 4 because through the helpful and cooperative approach of both representatives it became apparent that there was a clear error of law in the decision meaning that it could not stand
9. The basis of Ground 1 is that the Judge materially erred in law by collapsing Stage 1 of the JCK guidance on the application of s.32 NABA 2022 into Stage 2. Stage 1 guides the Judge to decide, taking the Appellant’s case at its highest, whether it discloses a Convention reason. Stage 2 guides the Judge to decide whether the Appellant genuinely fears persecution for that Convention reason. Both Stage 1 and Stage 2 should be decided in accordance with s.32 NABA on the balance of probabilities. If the answer to both is positive the Judge should then decide risk on return on the lower standard.
10. In this case there is no doubt, and indeed the Respondent concedes, that the Judge failed to deal properly with Stage 1 and that this was an error of law. Indeed, there is considerable confusion in the decision in the way that Stage 1 is deal with. This is not assisted by the ASA of 25 April 2025 where the primary two issues, copied over into the decision, are firstly whether the Appellant has a well-founded fear of persecution and secondly whether he is a credible witness. Logically these are back to front and do not address the Stage 1 issue in any event.
11. In the decision the Judge properly sets out the legal framework at paragraph 20 in accordance with JCK but does not then go on to make a specific Stage 1 finding. Indeed, at paragraph 33 the Judge finds
“Even taking his case at its highest, the appellant describes a peripheral commercial role, not political or security work”
before concluding at paragraphs 39 and 40
39. At Stage 1 of s.32, imputed political opinion could theoretically arise where a person is perceived as helping the former regime. On the balance of probabilities, I do not accept that this appellant in fact undertook the activities alleged or that the Taliban formed such an opinion about him. Stage 1 therefore fails.
40. Even if Stage 1 were met, at Stage 2 I am not satisfied to the lower standard that the Taliban have, or would have, any adverse interest in him. The asylum ground is dismissed
12. The Judge’s error of law in this respect is twofold. Firstly, whilst directing himself at paragraph 20 to the two separate matters that he should deal with on the balance of probabilities he fails to separate those matters in his findings. Secondly, he fails to notice that the Respondent conceded Stage 1 in both the refusal decision and at paragraph 12 of the Respondent’s review. However, there is in my judgment absolutely no materiality in this failure and I reject entirely the suggestion that it somehow infects the rest of the decision. Stage 1 is essentially a formal requirement because without a Convention reason an applicant cannot be entitled to the protection of the Refugee Convention. Stage 2, whether an applicant/appellant does in fact fear persecution is based on the credibility findings which is of course core to the decision and indeed in this case was the primary object of the issues set out in the ASA being whether the Appellant is a credible witness who has a well-founded fear of persecution. The Judge deals with this issue finding on the balance of probabilities that the Appellant is not a credible witness and as such has no well-founded fear of persecution. The error law in failing to find, despite the Respondent conceding, that taken at it highest the claim demonstrates a Convention reason is not material.
13. Turning to Ground 4 both representatives accepted, and it became clear that the Judge had fallen into material error. At paragraphs 29 to 32 of the decision the Judge refers to the documents produced shortly before the hearing purporting to be Taliban letters. He notes that the documents are not addressed to the Appellant or his family and appear to contain instructions between Taliban cadres. Applying Tanveer Ahmed the Judge finds the documents are not reliable and attaches little weight to them.
14. It is clear that the Judge is referring to the letters wrongly uploaded by the Appellant’s legal representatives on 14 August 2025 which do not relate to this Appellant. The ‘correct’ letters are those uploaded on 21 Auguust 2025. These letters name the Appellant and contain very specific threats of detention and death. The Judge has overlooked these documents and the failure to deal with these documents and instead to assess wrongly uploaded documents that were not connected with this appeal amounts to material error of law.
15. I am satisfied that the decision of the First-tier Tribunal contained an error of law material to the decision to dismiss this appeal.

Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error on a point of law. The decision of the First-tier Tribunal is set aside. As the error was fundamental to the credibility findings, I remit this appeal to the First-tier Tribunal for rehearing before any judge other than Judge Green with no findings preserved.

Judge J F W Phillips
Deputy Judge of the Upper Tribunal

23 March 2026