Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005290

First-tier Tribunal No: PA/66293/2023
LP/05549/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 29th of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BEACH

Between

VK
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Moriarty, Counsel instructed by York Solicitors
For the Respondent: Ms Clewley, Senior Home Office Presenting Officer

Heard at Field House on 1 January 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and/or 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 and/or any member of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of the First-tier Tribunal, promulgated on 9th October 2025, dismissing the appellant’s appeal against a decision of the Secretary of State made on 3rd December 2023, refusing his protection and human rights application.
Background to the appeal
2. VK is a Sri Lankan national who arrived in the UK on 14th of May 2022 and claimed asylum on 15th May 2022.
3. The appellant states that he is of Tamil ethnicity. He states that he was arrested by the Sri Lankan army on 1st September 2021 on suspicion of LTTE involvement and that he was detained for 10-12 days. The appellant states that he was released upon payment of a bribe by his uncle. He states that, following his release, he stayed in Negombo before the agent made arrangements for him to leave Sri Lanka. He states that, after his release from detention, the authorities have visited his family home looking for him. The appellant also states that, after his arrival in the UK, he became involved with TGTE and TCC.
4. The respondent accepted that the appellant was a Sri Lankan national of Tamil ethnicity. The respondent did not accept the appellant’s account of events in Sri Lanka. The respondent did not accept the appellant’s account of his political activities in the UK and did not accept that the appellant would be at risk on return to Sri Lanka as a result of any sur place activities.
5. The First-tier Tribunal heard the appeal on 7th July 2025 and dismissed it in a decision dated 9th October 2025. Permission to appeal was granted by the First-tier Tribunal on 17th November 2025.
6. The appeal came before me at an error of law hearing on 15th January 2026. There were three issues:
a. Whether the judge had applied the incorrect standard of proof
b. Whether the judge failed to make findings on all material matters
c. Whether the judge erred in failing to give anxious scrutiny to the evidence
The error of law hearing
7. At the hearing before me, the appellant was represented by Mr Moriarty, Counsel instructed by York Solicitors. The respondent was represented by Ms Clewley, a Senior Home Office Presenting Officer.
8. The parties were in agreement that the appeal should be remitted to be heard afresh by the First-tier Tribunal. Ms Clewley said that the respondent accepted that the matter should be remitted to be heard afresh by the First-tier Tribunal in light of the incorrect self-direction regarding the standard of proof. She accepted that the judge made later reference to the correct standard of proof but that it was unclear when the judge would have had the correct standard of proof in mind. Mr Moriarty agreed with the respondent’s position.
Error of law decision
9. I bear in mind that an appellate Tribunal should be wary of setting aside a decision by a lower Tribunal. In doing so I apply what was held in in Ullah v SSHD [2024] EWCA Civ 201 at [26]. I further bear in mind what was said in Volpi v Volpi [2022] EWCA Civ 464 at [2] and what was held in HA (Iraq) [2022] UKSC 22 at [72].
10. However, I find that there is a material error of law in the judge’s decision.
11. The appellant’s asylum application was made on 15th May 2022 and was made before the coming into force of Section 32 of the Nationality and Borders Act 2022 which stated that, for asylum claims made on or after 28th June 2022, the decision maker must first determine, on the balance of probabilities, whether the applicant has a characteristic that could cause them to fear persecution and whether the applicant does in fact fear persecution as a result of that characteristic.
12. The applicable standard of proof for asylum claims made before 28th June 2022 is a single standard of proof of reasonable degree of likelihood of whether there is a convention reason, whether the appellant fears persecution for that convention reason, whether the appellant would be persecuted for that convention reason, whether there is a sufficiency of protection available and whether there is a realistic internal flight alternative.
13. At [2], the judge states:
‘In immigration appeals, the burden of proof is on the appellant and the standard of proof is the balance of probabilities’
14. Within the body of the decision, the judge makes reference to ‘the lower standard of proof’ [17], ‘even to the lower standard’ [21], [32] and to ‘not reasonably likely’ [29]. That is the correct standard of proof in a pre-NABA asylum claim.
15. However, the judge makes a number of adverse findings throughout the decision and the standard of proof is not noted for each of those findings. In light of the self-direction which the judge gave at the beginning of his decision, it is difficult to be certain what standard of proof was in the judge’s mind when he made the later adverse findings, even taking account of the references to the lower standard of proof in respect of some of those findings. For that reason, it is unclear whether the judge has, in fact, applied the correct standard of proof throughout his fact finding.
16. I concur with the agreement of the parties that the decision contains a material error of law. Whilst the judge later refers to the correct standard of proof, the self-direction makes specific reference to the incorrect standard of proof. I am further satisfied that it would be in the interests of justice to remit this appeal to the First-tier Tribunal to be heard again afresh by a different judge.
Notice of decision
1. The First-tier Tribunal decision did involve the making of an error of law and I set it aside.
2. I remit the appeal to the First-tier Tribunal to be heard by a different judge. For the avoidance of doubt, none of the findings of fact are preserved.

F Beach
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

27th January 2026