Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005249
First-tier Tribunal No: PA/60043/2023
LP/02877/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE D. CLARKE

Between

MK
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Lucy King of Counsel, instructed by Asylum Justice.
For the Respondent: Ms Newton, Senior Presenting Officer

Heard at Field House on 4 March 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and any member of his family 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
SUMMARY
1. The issue before the Upper Tribunal in this case is whether the First-tier Tribunal materially erred in finding that “military conscription” and “Humanitarian Protection” were “new matters” for the purposes of s.85(6) of the Nationality, Immigration and Asylum Act 2002 and whether in the absence of consent under s.85(5) of the 2002 Act, the First-tier Tribunal had no jurisdiction to consider these matters..
INTRODUCTION
2. The Appellant appeals against the Decision of First-Tier Tribunal Judge Lester, promulgated on 14 May 2025 (“the Decision”), dismissing the Appellant’s appeal against the SSHD’s decision dated 25 October 2023 (“RFRL”), refusing the Appellant’s protection claim, dated 15 June 2021.
BACKGROUND
3. For the purposes of the grounds of appeal before me, I set out as follows the salient parts of the Appellant’s case, as advanced in the documentation before Judge Lester and as considered by the SSHD:
RFRL 25 October 2023
4. In the RFRL dated 25 October 2023, the SSHD identifies the Appellant’s “Basis of Claim” as follows:
“You told us that:
• You are a national of Myanmar.
• You feel unsafe because of the unrest going on in Myanmar and how the military is treating citizens and violating human rights (AIR13).
• This fear started after you found out about the coup d’etat in February 2021 (AIR16-AIR17).
• Your mother was a well-known activist for the National League of Democracy (NLD), and it is the military’s objective to get rid of that party and anyone associated with it (AIR19).
• Your mother was involved in community support (AIR19), worked as a secretary and in finance (AIR25) and in campaigns (AIR26) for the NLD.
• You fear the party would target you because of your mother’s association with the NLD (AIR24).
• You state that if you go back after over 10 years not living in Myanmar, you would be questioned about your mother’s connections to the NLD (AIR32).
• You claim that the military have a list of criminals and your mother was on this list (AIR36).
• You became aware of this through a family member, your mother’s cousin (AIR37; AIR39).
• You claim that this individual leveraged information about NLD members to secure a high-ranking position within the military (AIR43).
• If returned to Myanmar, you fear you will be forced into interrogation by the military because of your mother’s links to the NLD.”
5. The RFRL then considered and rejected the Appellant’s protection claim under the Refugee Convention, principally upon the basis that,
“The material facts of your claim which would have created a real risk of persecution are not accepted.”
6. The RFRL then considered and rejected the Appellant’s protection claim under the Humanitarian Protection provisions of Immigration Rule 339C,
“Humanitarian protection – Applying paragraph 339C of the Immigration Rules
Based on the information provided, and the credibility factors mentioned above you do not qualify for humanitarian protection because there is not a real risk that you would face:
i. the death penalty or execution;
ii. unlawful killing;
iii. torture or inhuman or degrading treatment or punishment of a person in the country of origin; or
iv. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
It is not considered that you would face a real risk of serious harm as set out in paragraphs 339C(i), 339C(ii) or 339C(iii). Regarding 339C(iv) you would not face a real risk of serious harm as there is no international conflict currently happening in Myanmar. While there is internal armed conflict, it is not considered that there is a risk to your life through indiscriminate violence.”
7. However, I find no mention of military conscription within the RFRL.
ASA1 dated 11 April 2024, as before First-tier Tribunal Lester.
8. In the Appellant’s first skeleton argument at paragraph [15], the Appellant singularly identifies the issue in the appeal as, “is the Appellant’s account credible”.
9. ASA1 (and indeed ASA2 dated 23 August 2024), summarise the substance of Appellant’s protection claim as follows:
“3. The Appellant is a national of Myanmar and was born on 27 August 2000.
4. In 2015 his mother became involved in the National League for Democracy (NLD) and was well known throughout her county and the party itself for her community support and also her direct work for the party such as acting as secretary, finance manager and other roles.
5. She died around the time of the military coup in 2021.
6. Her cousin (referred to by the Appellant as “uncle”) was at the time retired from the military and had been working with the Appellant’s mother in the NLD, but in the face of the threats to NLD supporters during the coup and since he returned to the military.
7. He therefore had access to sensitive party information with which to secure his return to the army, notwithstanding his previous support for the NLD.
8. Having resumed his support for the military he went from a life of very little to relative luxury (house in high end neighbourhood, two cars, etc)
9. He was able to inform the Appellant that his mother’s name appeared on a “wanted” list of criminals.
10. His mother’s home, where she kept a file of information on those she worked with in the NLD, was raided during the coup and the file was taken.
11. His father also remains in hiding.
12. The Appellant applied for a Tier 4 student visa on 08 August 2019, valid from 11.09.2019 to 18.10.2021.
13. He left Myanmar in September 2019 and studied in the UK; he claimed asylum on 15 June 2021.”
10. At paragraph [16], ASA1 then sets out sections of country evidence drawn from the CPIN: critics of the military regime, Myanmar (Burma), v.5.0, dated June 2023, which in part addresses adverse interest to family members of political activists, but also sets out country evidence relating to generalised violence against citizens.
11. However, it is to be noted that in the Appellant’s submissions at paragraphs [17] – [24], ASA1 singularly addresses a purported risk to the Appellant as a family member of a former activist.
12. I find no submissions in relation to Humanitarian Protection or military conscription in ASA1.
Respondent’s Review 30 May 2024
13. In a Respondent’s Review dated 30 May 2024, at paragraph [3] the SSHD acknowledged the Appellant’s singular identification in ASA1 of the Appellant’s credibility as the issue in dispute.
14. The SSHD then maintained her position as set out in the RFRL at paragraphs [5] – [16] by addressing the credibility of the purported risk to the Appellant as a family member of a political activist.
15. The Review does not address Humanitarian Protection, and it does not mention military conscription.
16. It is however relevant to note that the Review at paragraph [17] also states the following:
“[D] Bespoke Evidence
[17]. The following bespoke evidence has been reviewed.
a. Expert Report of Joshua Kurlantzick”
ASA2 dated 23 August 2024, as before First-tier Tribunal Judge Lester.
17. In response to the SSHD’s Review, ASA2 again singularly identifies the issue in the appeal as, “is the Appellant’s account credible”.
18. ASA2 then goes on to extensively quote from the country report of Joshua Kurlantzick, which includes opinion on indiscriminate violence and the risks arising from military conscription.
19. Under “submissions” at paragraphs [21] – [33], the Appellant expressly argues at [30] that conscription will amount to persecution, and at [31], that “the levels of indiscriminate violence are now such that the situation meets Article 15 (c) of the Qualification Directive of Serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”.
Decision of First-tier Tribunal Judge Lester dated 14 May 2025
20. At paragraphs [7] – [11] under “issues in dispute”, Judge Lester states as follows:
7. The parties accepted the issues were as set out in the respondent review:
8. Issue (1) - Credibility
9. The parties confirmed there were no other issues.
10. The respondent confirmed they were not asserting that s.8 Treatment of Claimants was engaged in this appeal.
21. Judge Lester then made the following findings under “Evidence and Submissions”, which go to the issue in dispute before me,
“11. I heard evidence from the appellant. He adopted his statement of 29/4/24. He relied on both skeleton arguments (the original ASA and also revised ASA), as well as the appellant bundle and oral evidence.
12. I heard submissions from both advocates.
13. New Matter - During closing submissions the appellant advocate raised two new matters: (1) Risk of Conscription, and (2) Art 15C qualification directive.
14. These matters had not been raised by the appellant in either ASA, or anywhere else in the appellant claim. Within both the ASAs at para 15 headed “Issues” the appellant set out that the only issue was credibility.
15. During the ensuing submissions by both advocates the respondent confirmed their position that these were both new matters and that the respondent did not consent to either of these matters being raised.
16. It follows that the new matters fall outside the consideration of the issues in the appeal.”
Grant of PTA and Grounds of Appeal
22. On 13 November 2025, First-tier Tribunal Judge Wilson granted the Appellant permission to appeal the Decision of FTIJ Lester without restriction.
23. In grounds of appeal dated 21 May 2025, as settled by Lucy King of Counsel, the Appellant advanced the following grounds of appeal, which I summarise as follows:
Ground One:
The assessment of the question of whether humanitarian protection was a “new matter” within the meaning of s.85(6) of the Nationality, Immigration and Aylum Act 2002 was made on a wholly erroneous factual basis,
• In summary, the Appellant argues that the FTIJ erred in failing to consider for himself whether Humanitarian Protection and military conscription were new matters; only once the Tribunal finds that there is a new matter does it defer to the SSHD for consent to be given for the Tribunal to consider the new matter.
• In doing so, the FTIJ failed to have regard to:
i. At paragraph 4: PIQ June 2021 refers to the country situation
ii. At paragraph 6: Decision letter expressly considers humanitarian protection and indiscriminate violence
iii. At paragraph 7: Grounds of appeal expressly refer to humanitarian protection
iv. At paragraph 8: Appellant’s witness statement refers to fear of (consequences of) conscription
v. At paragraph 9: The questions posed to the Country Expert, in particular question 5 (conscription) and 7 (risk of indiscriminate violence)
vi. At paragraph 10: The Country Expert’s detailed and extensive evidence addressing these specific questions
vii. At paragraph 12: The Respondent’s Review expressly reviews the “bespoke evidence” of the Country Expert Report.
• Notwithstanding any concession by the Appellant’s representative at the start of the hearing, Humanitarian Protection had been in issue throughout the Appellant’s claim.
• The FTIJ’s findings at [14] that Humanitarian Protection and military conscription had not been raised by the Appellant throughout his claim, was unsustainable.
Ground Two:
Failure to follow the test in Mahmud and properly identify whether the question of humanitarian protection was a “new matter” within the meaning of s.85(6) of the Nationality, Immigration and Aylum Act 2002.
Ground Three:
Improperly deferring the question of whether the issue of humanitarian protection is a “new matter” to the Respondent.
Ground Four:
Failure to give reasons.
• In summary, the FTIJ merely accepted the SSHD’s submission that Humanitarian Protection and military conscription were “new matters” without giving any reasons why he accepted that submission.
Ground Five: Failure to consider an issue properly before the Tribunal, namely humanitarian protection
• In summary the Appellant argues that “If the issue of humanitarian protection (conscription and/or indiscriminate violence) were not new matters, they were issues properly before the Tribunal”. Therefore, the FTIJ materially erred by failing to consider these issues”.
24. There was no Rule 24 reply.
25. The matter now comes before me to determine whether there is an error of law in the Decision of the Judge pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If I find an error, I must then determine whether the error is material, such that the Decision should be set aside. If the Decision is set aside, I must decide whether to remake the Decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.
ERROR OF LAW HEARING
LAW
26. For the purposes of the pleaded grounds of appeal before me, I set out the essential legal framework as follows:
2002 Act
85 Matters to be considered
(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1) ... against a decision the Tribunal] may consider ... any matter which it thinks relevant to the substance of the decision, including ... a matter arising after the date of the decision.
(5) But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.
(6) A matter is a “new matter” if—
(a) it constitutes a ground of appeal of a kind listed in section 84, and
(b) the Secretary of State has not previously considered the matter in the context of—

(i) the decision mentioned in section 82(1), or
(ii) a statement made by the appellant under section 120.]
Mahmud (S. 85 NIAA 2002 – 'new matters') [2017] UKUT 00488 (IAC)
1. Whether something is or is not a 'new matter' goes to the jurisdiction of the First-tier Tribunal in the appeal and the First-tier Tribunal must therefore determine for itself the issue.
2. A 'new matter' is a matter which constitutes a ground of appeal of a kind listed in section 84, as required by section 85(6)(a) of the 2002 Act. Constituting a ground of appeal means that it must contain a matter which could raise or establish a listed ground of appeal. A matter is the factual substance of a claim. A ground of appeal is the legal basis on which the facts in any given matter could form the basis of a challenge to the decision under appeal.
3. In practice, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter. The assessment will always be fact sensitive
DISCUSSION
27. As noted above, Mahmud confirms that a “new matter” for the purposes of s.85(6) must first be a factual matrix that has not been considered by the SSHD and second, the factual matrix must be capable of establishing a ground of appeal under s.84(1)(a) – (c).
28. Whilst the grounds of appeal allude to a singular impugned “new matter” which included both Humanitarian Protection and military conscription, as agreed by Ms King before me, I find it clear that the FTIJ identified these 2 issues as individual new matters at paragraph [13].
29. In this regard it is to be noted that Mr Said who appeared for the Appellant before the FTT has not provided a witness statement, and as such it is not clear how he attempted to argue these issues during submissions, that is, whether he suggested that military conscription was a factual matrix which constituted a s.84(1)(a) Refugee Convention ground of appeal, or a s.84(1)(b) Humanitarian Protection ground of appeal. I note that ASA2 at [30] specifically argued that military conscription would result in “persecution”, albeit that the specific Refugee Convention reason is not identified. In submissions before me, Ms King agreed that military conscription should appropriately be considered as a political opinion Refugee Convention reason, rather than under Humanitarian Protection.
30. As such, bearing these matters in mind, I will consider the grounds of appeal as they separately pertain to the issues of Humanitarian Protection and military conscription.
Humanitarian Protection
31. As set out in the “background” above, I find it crystal clear that the SSHD considered Humanitarian Protection under immigration rule 339C in the s.82 decision under appeal. As such, Ms Newton very appropriately conceded that Judge Lester erred in law at paragraph [13] when finding that “Article 15C qualification directive” was a “new matter”; this is because indiscriminate violence was a factual matrix previously considered by the SSHD which constituted a ground of appeal under s.84(1)(b).
32. In this regard, I note that the Qualification Directive was repealed in UK law on 31 December 2020, and as such Humanitarian Protection now falls to be considered under r 339C and not Article 15C. However, I make clear that Ms Newton did not seek to persuade me that anything turned on Judge Lester’s identification of Article 15C as a new matter rather than rule 339C.
33. Notwithstanding this clear error of law, I invited Ms King to address me on the materiality of the error in the light of my concerns regarding the procedural fairness of raising the issue of Humanitarian Protection during submissions. As I pointed out, the FTIJ confirms at paragraphs [7] – [9] that Mr Said for the Appellant confirmed in preliminary discussions that the singular issue was as set out in the Review, that is credibility. It therefore appeared to me that Mr Said had tried to argue Humanitarian Protection after cross examination and after the Respondent’s submissions had been completed - in circumstances where both ASAs also singularly identified the issue before the FTT as credibility.
34. In reply, Ms King argued that the fact that cross examination had finished made no difference. This was because Humanitarian Protection turned upon country evidence alone, not upon the Appellant’s credibility. Had the FTIJ not misdirected himself that Humanitarian Protection was a new matter, he could simply have paused Mr Said’s submissions to allow the SSHD to address him on the country evidence insofar as it went to the issue of Humanitarian Protection, before returning to Mr Said. Ultimately, Humanitarian Protection was argued in ASA2, and Mr Said relied on ASA2 as confirmed at paragraph [11] of the Decision. It was therefore fair to permit submissions on Humanitarian Protection once it was clarified that it was still in issue during submissions.
35. I find that Judge Lester was not assisted by the Appellant’s representative at the FTT nor by the singular identification of credibility as the only “issue” in both ASAs. However, it is nonetheless clear that the Appellant did argue in ASA2 at [30] that “levels of indiscriminate violence are now such that the situation meets Article 15 (c) of the Qualification Directive”. Equally, it is clear at paragraph [11] that Mr Said expressly “relied on both skeleton arguments” at the outset of the hearing.
36. I find that the Appellant’s case was therefore incoherently set out before Judge Lester.
37. However, the central difficulty in Judge Lester’s is that rather address this incoherence when it became apparent during Mr Said’s submissions, Judge Lester approached it from the erroneous position that Humanitarian Protection was a new matter which he had no jurisdiction to consider.
38. In substance, Judge Lester made mistakes of both law and fact when finding that Humanitarian Protection had not previously been raised by the Appellant at [14] and that this met the requirement for a new matter to be present under s.85(6) at [15]. The fundamental issue for the Tribunal to determine for itself was whether the SSHD had previously considered indiscriminate violence and whether this constituted a ground of appeal under s.84(1)(b).
39. I agree with Ms King, that the issue of Humanitarian Protection was a matter for submissions by reference to country evidence; the Appellant’s credibility played no part and as such there would have been no requirement to revisit cross examination and no unfairness in that regard. However, how Judge Lester might otherwise have dealt with the issue of fairness once the incoherence in the Appellant’s case came to light in submissions, requires me to speculate.
40. Having regard to the test for materiality at [43] of ASO [2023] EWCA Civ 1282,
“Whether it is clear on the materials before [the F-tT] any rational tribunal must have come to the same conclusion'.”
I cannot be satisfied that any rational Tribunal would inevitably have refused the Appellant permission to argue Humanitarian Protection in analogous circumstances to the instant appeal.
41. I am therefore satisfied that Judge Lester materially erred in law when finding that Humanitarian Protection was a “new matter”, which he had no jurisdiction to consider.
Military Conscription
42. In terms of military conscription, I find it clear that it was not considered by the SSHD in the RFRL for the purposes of s.86(b)(i). There is simply no mention of conscription at all.
43. Turning then to whether the SSHD considered conscription following a statement made by the Appellant under s.120, for the purposes of s.85(6)(b)(ii):
44. The Appellant argued in the grounds and during submissions before me that conscription was raised in the Appellant’s witness statement and in the country report of Joshua Kurlantzick; both of which were before the SSHD at the time of her Review. In this regard, I find it clear at paragraph [40] of the witness statement that the Appellant stated that he was scared of conscription because he would be made to carry out acts of violence against civilians, and I accept that the country report further opines upon the risk of conscription.
45. However, in response to these documents, the Review simply stated,
“[D] Bespoke Evidence
[17]. The following bespoke evidence has been reviewed.
a. Expert Report of Joshua Kurlantzick”
46. I find that this falls a long way short of the positive act of having “previously considered the matter” as required s.86(6).
47. As set out at guidance note [1] of TC (PS compliance - "issues-based" reasoning) Zimbabwe [2023] UKUT 00164 (IAC), the Reform process “emphasises the requirement on the part of both parties in the FTT to identify the issues in dispute and to focus on addressing the evidence and law relevant to those issues in a particularised yet concise manner.” Equally, under guidance note [2],
2. A PS-compliant and focussed appeal skeleton argument ('ASA') often leads to a more focussed review, and in turn to a focussed and structured FTT decision on the issues in dispute. Reviews are pivotal to reform in the FTT. The PS makes it clear that they must be meaningful and pro-forma or standardised responses will be rejected. They provide the respondent with an important opportunity to review the relevant up to date evidence associated with the principal important controversial issues. It is to be expected that the FTT will be astute to ensure that the parties comply with the mandatory requirements of the PS, including the substantive contents of ASAs and reviews.”
48. As such, I find it wholly unsurprising that the Review did not address conscription because ASA1 did not put it in issue and did not identify any evidence relevant to conscription. It is extremely common for parties to serve evidence at the FTT which alludes to matters that in whole or part, are not relevant to the issues in dispute. Equally, it is common for witness statements to comment upon matters that do not go to the principal issues in dispute. As such, without more, I am not satisfied that a reference to reviewing a country report can rationally be construed as having previously considered “the matter” of military conscription in the context of a statement made by the Appellant under s.120.
49. I am therefore satisfied that conscription was a “new matter” not previously considered by the SSHD; that the SSHD expressly refused consent (see FTT determination at [15]); and that Judge Lester did not err when finding that he had no jurisdiction to consider the same at [16].
CONCLUSION ON ERROR OF LAW
50. For the reasons above, I find that the Decision of First-tier Tribunal Judge Lester contains a material error of law such that the Decision must be set aside pursuant to s.12(1) of the 2007 Act. In the absence of any challenge, I preserve all findings of fact at paragraphs [22] – [121].
DISPOSAL
51. As things stand, the position is that the Tribunal has not substantively considered Humanitarian Protection and the SSHD before the FTT refused consent for the Tribunal to consider the “new matter” of conscription.
52. Having regard to the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I find it appropriate to remit this appeal to the First-tier Tribunal because to retain the appeal in the Upper Tribunal would limit the Appellant’s appeal rights in circumstances where he was previously denied the opportunity of putting his case before the FTT.
53. As discussed at the hearing, it is now a matter for the Appellant to invite the SSHD to reconsider granting consent for the Tribunal to consider the new matter of military conscription.
NOTICE OF DECISION
1. The Decision of First-tier Tribunal Judge Lester dated 14 May 2025 involved the making of an error of law.
2. I set aside the Decision of Judge Lester and preserve all findings of fact at paragraphs [22] – [121].
1. I remit this appeal to the First-tier Tribunal to be heard by any Judge other than First-tier Tribunal Judge Lester.

D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 March 2026