Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005351
First-tier Tribunal No: PA/54373/2023
LP/00597/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3 September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

BH
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Wass, Counsel
For the Respondent: Ms J Isherwood, Senior Presenting Officer

Heard at Field House on 25 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant (and/or any member of her family, expert, witness or other person the Tribunal considers should not be identified) 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 other person. 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 First-tier Tribunal Judge Degirmenci, (‘the Judge’) promulgated on 10 October 2025, dismissing her appeal on protection and human rights grounds. Permission to appeal was granted by Upper Tribunal Judge Kamara on 16 December 2025.
2. The issue is whether the judge acted procedurally unfairly by relying upon adverse credibility matters which were not expressly put to the appellant. This is a finely balanced case. For the reasons below, I find one instance of procedural unfairness, but it was not material. The decision of the First-tier Tribunal therefore stands.
Anonymity Direction
3. The First-tier Tribunal made an anonymity direction. The appeal concerns a protection claim and allegations of sexual violence. I am satisfied that the direction should continue. The order made above reflects that conclusion.
Background
4. The appellant is a citizen of Sri Lanka. She entered the United Kingdom in 2011 with leave as a student and claimed asylum in April 2015.
5. Her claim was refused and her appeal was dismissed by First-tier Tribunal Judge Ransley in September 2015. She did not attend that hearing and was not represented, although she had attended an earlier case management hearing and knew that the substantive hearing could proceed in her absence.
6. The appellant made further submissions in March 2021. Those submissions were refused on 4 July 2023, giving rise to the appeal before the Judge.
7. In summary, she claimed that her sister and brother-in-law were involved with the LTTE; that she arranged accommodation for persons later implicated in the 2006 Habarana bombing; that her bank account was used to receive funds; and that, following her return from Dubai in 2010, she was detained, tortured and repeatedly raped by the Sri Lankan authorities before being released after her father paid a bribe.
The decision of the First-tier Tribunal
8. The Judge identified the issues as whether the appellant had come to the adverse attention of the Sri Lankan authorities, whether she would be of adverse interest on return, and whether removal would breach Articles 3 or 8 ECHR on medical grounds. Applying Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka [2002] UKIAT 00702, the Judge treated Judge Ransley's 2015 decision as the starting point, but considered the later evidence, including the 2019 and 2024 witness statements, the oral evidence, the medical records and Dr Myra Stern's medico-legal report dated 31 October 2024.
9. The Tribunal accepted that some explanations justified departure from aspects of the earlier reasoning. She nevertheless found material inconsistencies concerning when the appellant learned of her relatives' LTTE involvement, whether she knowingly assisted their activities, the purpose for which her bank account was used, what she told the authorities in 2006, and why she travelled to Dubai.
10. The Judge found that the 2019 statement and the account given to Dr Stern presented a case of earlier knowledge and knowing assistance, whereas the 2024 statement and oral evidence presented a case of knowledge acquired only during detention in 2010 and unknowing assistance. At paragraphs 47 and 54-56, the judge found that those differences went to the core of the claim and undermined the history given to Dr Stern.
11. The judge rejected the claimed continuing interest of the Sri Lankan authorities, found the mother's letter unreliable, and found that the appellant had not established that she would appear on a stop or watch list. Applying KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC), she concluded that the appellant would pass safely through immigration controls.
12. The judge accepted that the appellant had mild depression but found that the Article 3 medical threshold was not met. The Article 8 claim was also dismissed after weighing the appellant's private and family life and mental health against the public interest.
Grounds of Appeal
13. The grounds contend that the judge erred in the approach to Devaseelan by treating the earlier decision too prescriptively. Ms Wass reiterated this point and submitted that the Judge should have looked at all of the evidence holistically. They further contend that the judge acted procedurally unfairly by relying upon inconsistencies which were not raised in the refusal letter or the respondent's review and were not put to the appellant during the hearing.
14. In particular, the appellant relies upon the judge's treatment of the differing accounts of her knowledge of LTTE activity, her use of the bank account and what she told the authorities in 2006. It is submitted that the appellant was not given an opportunity to explain those matters before the judge found that there was no explanation for the conflicting accounts. Ms Wass highlighted the fact that the appellant was not afforded the opportunity of dealing with inconsistencies that were not inconsequential.
15. The grounds separately challenge the inference at paragraph 58 that the appellant delayed claiming asylum because she intended first to await the outcome of her partner's claim. It is submitted that this was a new, unput and speculative point.
16. The respondent opposes the appeal. The Rule 24 response submits that the appellant and her professional representatives should have known of the material differences between the earlier and current cases and bore responsibility for addressing them. It relies upon the observation made when permission was first refused that the judge could not be expected to put every 'minute nuance' to the appellant.
17. The Rule 24 response refers to BW (witness statements by advocates) Afghanistan [2014] UKUT 568 (IAC), because counsel provided a statement about the hearing. The respondent does not impugn counsel's integrity. I proceed on the basis that the hearing note accurately records the material questioning.
Discussion
18. The authorities do not establish an inflexible rule that every point affecting credibility must be put expressly to a witness. They consistently emphasise that the requirements of fairness depend upon the facts and procedural context of the particular case.
19. In Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173, the Court rejected at [2] as too broadly framed a rule that an adjudicator must accept an assertion whenever neither the Secretary of State nor the adjudicator has expressly challenged it. The proposition was not to be 'rigidly applied to all situations'.
20. At Maheshwaran [3], the Court observed:
Adjudicators in general will reserve their determinations for later delivery. They will ponder what has been said and what has not been said, both before the hearing and at the hearing. They will look carefully at the documents which have been produced. Points will sometimes assume a greater importance than they appeared to have before the hearing began or in its earlier stages. Adjudicators will in general rightly be cautious about intervening lest it be said that they have leaped into the forensic arena and lest an appearance of bias is given.
21. A judge is therefore not required to provide a running commentary or identify every point which may later acquire significance. Maheshwaran [4] nevertheless recognises that failure to put a point which is decided against a party can be grossly unfair. The party must have a proper opportunity to deal with a material point. Whether that opportunity has been afforded remains contextual.
22. The first part of Maheshwaran [5] states:
Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that 'least said, soonest mended' and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the tribunal's attention to some other aspect of the case.
23. The Court continued:
Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds.
24. At Maheshwaran [6], the Court stressed that 'The requirements of fairness are very much conditioned by the facts of each case.' At [31], it added that what is made of discrepancies is ordinarily a matter for the first-instance judge.
25. The same approach appears in Dahir Elmi Abdi and Others v Entry Clearance Officer [2023] EWCA Civ 1455. At Abdi [29], drawing upon HA v Secretary of State for the Home Department (No 2) [2010] CSIH 28, the Court held that fairness is contextual and fact-sensitive and that general principles cannot be applied by rote. A tribunal may identify a new issue, but it will ordinarily be unfair to decide upon it without hearing the parties. Conversely, there is no general obligation to notify them of every matter upon which the tribunal may rely. Where credibility is known to be in issue, there will generally be no unfairness in reliance upon a point which is plainly relevant to that assessment.
26. At Abdi [30], the Court adopted the guidance from Maheshwaran. Where credibility depends upon several inconsistent statements, fairness may sometimes require the inconsistencies to be put, but that will not usually be the case, especially where the party is represented. The Surendran Guidelines, considered at Abdi [31]-[32], do not directly govern this appeal because credibility had plainly been raised. Their limited relevance is that failure to put an obvious inconsistency with a previous statement does not automatically make a hearing unfair.
27. At Abdi [33], the Court referred to TUI UK Ltd v Griffiths [2023] UKSC 48. The general principle is that evidence which is to be rejected should ordinarily be challenged so that the witness may answer. The rule is flexible and governed by overall fairness. TUI is not directly determinative because it concerned rejection of uncontroverted expert evidence where the expert had not been cross-examined. Here the appellant's credibility was expressly disputed, she was represented, and the inconsistencies arose from factual statements previously relied upon on her behalf.
28. The facts of Abdi illustrate the importance of context. The FtT there rejected the claim on a new theory concerning the source of remitted funds which was not raised in the refusal decisions, was contrary to the apparent documentary position, and could not reasonably have been anticipated. At [41], the Court stressed that its conclusion was fact-specific.
29. In the present appeal, credibility was plainly central. The 2015 refusal decision raised concerns about the hotel booking, the claimed lack of suspicion concerning the brother-in-law, and the bank account. The appellant was professionally represented. Her 2019 statement was relied upon in support of the further submissions, and her representatives later prepared the 2024 statement. The appellant and her representative must therefore have known the substance of the earlier case and whether it remained her case. If it did not, it was for them to explain the material changes.
30. The most important inconsistency concerned the timing of the appellant's knowledge. In 2019 she gave a detailed account of discovering LTTE involvement following the 2006 bombing, becoming sympathetic and agreeing to help. Her later evidence was that she learned of it only during detention in 2010. Dr Stern recorded an account materially consistent with the 2019 version. This was a direct contradiction within the appellant's own case, not a new theory formulated by the judge.
31. During the hearing, the appellant was asked when she became aware of her relatives' political activities and whether anything in the 2019 statement was incorrect. She said that the earlier assertion about her knowledge was wrong. It might have been preferable to take her to every relevant passage, but Maheshwaran [3] and [5] make clear that a represented party generally bears the forensic responsibility for addressing inconsistent statements already before the decision-maker.
32. The same applies to the bank account. The 2019 account indicated knowing assistance through the receipt of LTTE funds. The later account was that the appellant believed the deposits came from her brother-in-law's business. The refusal decision had raised the claimed lack of suspicion, and the general subject was explored orally. The appellant and her representative must have known that the change required explanation.
33. The differences concerning the 2006 questioning and the reason for travelling to Dubai were less significant examples of the same difficulty. They were apparent from the previous and current statements. Applying HA as summarised at Abdi [29], they were plainly relevant to credibility. Applying Maheshwaran [5] and Abdi [30], fairness did not require the Judge to put each passage before considering the cumulative effect.
34. I therefore accept Ms Isherwood’s submissions as articulated in the Rule 24 response: that the appellant and her representatives bore responsibility for addressing the material changes. The Judge was not obliged to conduct the appellant's case or provide an exhaustive inventory of discrepancies during evidence.
35. The Judge was entitled to consider the implications for Dr Stern's report. She did not reject the expert's clinical competence or substitute a diagnosis. She accepted mental health difficulties but rejected the historical account upon which the asserted causal connection depended. TUI did not require acceptance of clinical consistency where the factual history supplied to the expert materially conflicted with the case advanced before the Tribunal.
36. I reach a different conclusion concerning paragraph 58 of the FtT decision. The Judge inferred that the appellant delayed claiming asylum because her partner would pursue his claim first and she would attach herself to it if successful. That was not an inconsistency in the appellant's prior case. It was a new attribution of motive, not raised in the refusal decision, review or cross-examination and not inevitable from the chronology.
37. Applying HA as summarised at Abdi [29], the judge should have put that proposed inference to the appellant. This aspect is closer to Abdi [34]-[36], because it could not necessarily have been anticipated. I agree with Ms Wass’ submission that reliance upon it was speculative and procedurally unfair.
38. The materiality test is demanding. The test for materiality has been expressed in different ways, but the central proposition by which I have directed myself is to ask whether any error(s) “might” have affected the outcome, or, put in another way, whether the any rational judge must have come to the same overall conclusion notwithstanding any error(s); R (Iran) v SSHD [2005] EWCA Civ 982 at [10, 11]. At Abdi [37], the Court rejected reasonable likelihood as the test. At [38], it stated: 'The test is whether remission would be pointless because the result would inevitably have been the same.' At [39], it declined to speculate where the unput point was dispositive.
39. The partner-related inference was only one part of the treatment of delay and did not found the rejection of the substantive account. The principal findings at paragraphs 32-56 concerned the incompatible accounts of knowledge, knowing assistance, the bank account, the 2006 questioning, Dubai and the history given to Dr Stern. At paragraph 47 the judge found those differences went directly to material parts of the claim; at paragraphs 54-56 she considered their effect on the expert evidence.
40. Even if a satisfactory explanation had been given for the chronology of the partner's claim, it would not have resolved those independent contradictions. This differs from Abdi [39], where the unput issue was dispositive. Here it was supplementary and severable. I am satisfied that the result would inevitably have been the same per R (Iran).
41. Turning to the first ground, namely the Devaseelan point, I do not consider that the Judge treated Judge Ransley's decision as a legal straitjacket. She used it as the starting point, considered the later evidence, and accepted explanations for some earlier concerns. The principal adverse findings arose from post-2015 evidence. No material error is established in the application of Devaseelan.
42. This remains a finely balanced case. Better practice would have been to identify the central documentary inconsistencies more explicitly. However, all the relevant authorities stress that fairness is conditioned by the facts of each case. Here credibility was plainly disputed, the appellant was represented, and the earlier statements had been relied upon on her behalf. The Judge was entitled to rely upon those known and obvious inconsistencies without putting every passage.
43. The inference concerning the partner's asylum claim was procedurally unfair, but applying the test referred to above, it was not material. The Judge's independent findings concerning the incompatible accounts were lawfully open to her and sufficient to sustain the dismissal.
Notice of Decision
44. The decision of the First-tier Tribunal involved an error of law in relying upon the unput and speculative inference concerning the appellant's partner's asylum claim.
45. That error was not material to the outcome.
46. The decision of the First-tier Tribunal dismissing the appeal therefore stands.
47. The appeal to the Upper Tribunal is dismissed.

V S Rae-Reeves
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
Date: 26/08/2026