Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005148

First-tier Tribunal No: PA/01001/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16th January 2026

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

CP
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House on 7 January 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 the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. At the hearing, Mr Walker conceded the appeal on behalf of the respondent. My decision will therefore be brief.
2. The appellant is a citizen of Sri Lanka who claims to face a risk of persecution in Sri Lanka on account of his perceived involvement with the LTTE. In August 2022 he applied for asylum. In February 2024 his application was refused. The appellant appealed to the First-tier Tribunal where his appeal came before Judge of the First-tier Tribunal Traynor. In a decision promulgated on 17 July 2025 the judge dismissed the appeal. The appellant is now appealing against this decision.
3. The appellant’s lengthy grounds of appeal are wide ranging and raise numerous issues. However, given Mr Walker’s concession, it is only necessary to consider one of the points raised, which is the appellant’s contention in the grounds that the judge applied the wrong standard of proof.
4. The appellant’s asylum claim was made on 6 August 2022. Accordingly Sections 31–36 of the Nationality and Borders Act 2022 are applicable. The application of these provisions is explained in JCK (s.32 NABA 2022) [2024] UKUT 00100 as follows:
1. Sections 31-36 of the Nationality and Borders Act 2022 apply in an appeal where the claim for international protection was made after 28 June 2022.
2. In an appeal to which s32 NABA 2022 applies, the proper approach is to address each of the questions posed by the section expressly and sequentially.
3. Question 1 is whether, on the balance of probabilities, the claimant has a characteristic which could cause them to fear for one of the five reasons set out in the Refugee Convention. In simple terms: is there a Convention reason?
4. Question 2 is whether, on the balance of probabilities, the claimant “does in fact fear” such persecution. This is the ‘subjective fear’ test.
5. Questions 3-5 are matters of objective evaluation and must each be determined on the lower standard of proof: ‘a reasonable degree of likelihood’. Is it reasonably likely that there is:
• a risk of harm
• an absence of state protection, and
• no reasonable internal flight alternative
5. The judge set out his conclusions on the asylum claim in paragraph 74 of the decision, where he stated:
“I therefore find, on a balance of probabilities, that the Appellant’s claim is one which does not stand the test of careful and anxious scrutiny and that, upon a balance of probabilities, he has not told the truth, sufficient to establish that he has come to the adverse attention of the Sri Lankan authorities on account of his imputed political opinion, or that he would be at risk upon return to Sri Lanka based upon that claim. I therefore find that the Appellant has not established a characteristic which engages his rights to protection under the provisions of the 1951 Refugee Convention”.
6. It appears from this paragraph that the judge assessed the entirety of the appellant’s case, including the objective evaluation of whether the appellant faces a risk of harm in Sri Lanka, on the balance of probabilities standard. As acknowledged by Mr Walker, this is legally erroneous, as although the balance of probabilities is the standard applicable to the question of whether the appellant has a characteristic which could cause him to fear persecution and whether he has a subjective fear, it is not the applicable standard to the question of whether there is a risk of harm. That needed to be determined to the “reasonable degree of likelihood” standard.
7. I put to Mr Walker that the error may be immaterial given that judge had, in paragraph 75, addressed whether the appellant was entitled to protection on humanitarian protection grounds; and in so doing explicitly stated that he was assessing this question on the “lower standard applicable”. Mr Walker maintained that the error was material – and the decision should not stand - as the asylum claim had been decided on the wrong premise as to the standard of proof.
8. Mr Walker submitted that no findings of fact could be preserved and in these circumstances the case ought to be remitted to the First-tier Tribunal.
9. The appellant did not have a strong view on whether the matter should be remitted or remain in the Upper Tribunal.
10. The general principle is that cases will be retained in the Upper Tribunal for remaking. However, there are exceptions to this, as set out in paragraphs 7.2.(a) and (b) of the Practice Statement. The exception in paragraph 7.2(b) is that:
“the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal”.
11. This is a case in which there is extensive evidence to be considered (as indicated by the length of the fact finding in the First-tier Tribunal decision). This evidence will need to be considered afresh given that the conceded error undermines the fact finding relevant to whether the appellant faces a risk on return. In these circumstances, I agree with Mr Walker that the extent of judicial fact finding likely to be necessary for the decision to remade is such that remittal to the First-tier Tribunal is appropriate.
Notice of Decision
12. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
13. The case is remitted to the First-tier Tribunal to be made afresh by a different judge with no findings preserved.

D. Sheridan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 January 2026