Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005430
First-tier Tribunal No: PA/69152/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16 March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

AM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms U Miszkiel, Counsel instructed by KT Solicitors Limited
For the Respondent: Mr Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 29 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. The appellant appeals with permission against the decision of a First-tier Tribunal Judge promulgated on 14 October 2025 dismissing his appeal against the respondent’s decision dated 29 July 2024 to refuse his protection claim made on 14 July 2023.
2. The appellant claim was that he would be at risk on return to India, as he had been accused by the authorities of involvement in a business that sold counterfeit medicines and transferred funds to a terrorist group. He claimed to fear arrest and mistreatment by the Indian authorities. In refusing the claim, the respondent concluded that prosecution for the alleged offence in India did not bring the appellant within the scope of the Refugee Convention.
3. The respondent did not accept that the appellant had worked in the medical supply business or that he had been arrested by the Indian police. It was further considered that he had failed to provide a credible account, given a number of inconsistencies in his evidence for which no reasonable explanation had been offered.
4. Permission to appeal was sought by the appellant and granted by First-tier Tribunal Judge Gumsley on 25 November 2025.

The Decision
5. The appellant was represented at the hearing. The judge’s findings on whether there was a Convention reason were recorded at [12]–[16] and it was noted that having regard to the appellant’s claim at its highest he was arrested for his role in selling fake medicines and that it was his business partner that was suspected of sending money to the terrorists. The CPIN provided that those suspected of supporting or funding a terrorist organisation were likely to face prosecution rather than persecution [15].
6. In considering the appellant’s claim with reference to Article 2 and Article 3 of the ECHR the judge considered the appellant’s account at [18] and the reasons given by the respondent in refusing his claim at [19]. At [20]–[21] the judge noted the appellant’s response. At [22] the judge went on to make findings as to the appellant’s claim noting that he had considered the evidence before him “holistically and with anxious scrutiny”, however, that the appellant had failed to meet the threshold of serious harm because of a fear of investigation, detention, prosecution and imprisonment for criminal acts in India. The judge referred to the CPIN and concluded it did not support the finding that detention and prosecution of the appellant for a criminal offence in India met the threshold of serious harm. The appeal was dismissed on all grounds.

Grounds of Appeal
7. The grounds essentially highlight that first; there is an absence of findings of past serious harm. Particularly the grounds contend that the First-tier Tribunal summarised the legal test for serious harm but made no findings on whether past ill-treatment occurred despite detailed factual assertions in relation to the 2021 and 2022 detentions where the appellant described beatings, food deprivation, sexual assault. Whilst the respondent had expressly rejected these matters the First-tier Tribunal had failed to resolve primary disputes before proceeding to dispose the appellant’s claim. Insofar as the second ground is concerned the complaint was that the judge had failed by characterising the matter as prosecution rather than persecution and did not assess the real risk of renewed ill-treatment if detained on a further occasion.

Grant of Permission
8. The First-tier Tribunal granted permission on 25 November 2025, on the basis that they were persuaded that the First-tier Tribunal Judge erred by failing to make any or any adequate findings as to whether the appellant had been ill-treated whilst previously in detention as he asserted he had. Such findings were arguable and highly material to the question of a risk of future harm. Both grounds were considered arguable.

The Hearing
9. At the error of law hearing I received helpful submissions from Ms Miszkiel and Mr Sheikh all of which are a matter of record. Ms Miszkiel emphasised the failure of the judge to make any findings in relation to the appellant’s previous detentions as outlined in the appellant’s case and summarised by the judge at [18] particularly regarding the 2022 arrest and detention during which the appellant stated he had been held for four months and mistreated in jail before being released following the payment of a bribe (see also [20]–[21]). It was submitted that had the judge made a finding on past persecution this would have been relevant to the assessment of future risk of ill-treatment.
10. In relation to ground 2 it was argued that the judge erred in finding that there was no political reason and thus no Convention reason as he had failed to consider whether the appellant’s association with a terrorist organisation gave rise to an imputed political opinion. As to disposal Ms Miszkiel submitted that the matter should be retained by the Upper Tribunal to be re-made or alternatively remitted and set aside in its entirety.
11. The respondent in submissions noted that the judge was clear insofar as his findings at [15] that it was the appellant’s business partner suspected of sending money to the terrorists, therefore his claim at its highest did not demonstrate a characteristic that had been attributed or imputed to the appellant, and in considering ground 2 taking the appellant’s claim at its highest it was prosecution rather than persecution. He further submitted that there was no material error of law and that in the event the judge was found to have erred on the issues raised then it would be appropriate for the matter to be remitted.
12. Ms Miszkiel in response submitted that for disposal purposes, the matter ought to be remitted. She also asked for it to be recorded that she was not the author of the grounds of appeal.
13. At the end of the decision I reserved my decision.

Conclusion
14. I have had in mind throughout the need to exercise judicial restraint before interfering with the decision of the Judge. It is now well established that the Upper Tribunal is not entitled to find an error of law simply because it does not agree with the decision or because the tribunal thinks the decision could be more clearly expressed or another judge could come to a different decision. Baroness Hale put it in this way in AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1AC 678 at [30]: “Appellant court should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or express themselves differently.” 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].
15. Nonetheless, I am satisfied that the decision discloses material errors of law for the following reasons.
16. The appellant advanced detailed allegations of ill‑treatment in 2021 and 2022 including beatings deprivation of food and sexual assault supported by a lawyer’s letter and consistent interview answers. In his witness statement at [17]–[18], he states that during the 2022 detention he was kept in custody beaten with rods until he became unconscious and given water and food only once in three days. In his substantive interview at question 8, he states that for four months he was detained beaten harassed and sexually tortured in jail and his screening interview at [4.1] records the same account of mistreatment during detention.
17. In rejecting his account the respondent in their refusal letter at [11(c)] simply rejected his account as it was not considered credible that he was arrested in Tamil Nadu but taken 194 miles away to Bombay in prison. The respondent did not go on to make any particular findings on the ill‑treatment the appellant claimed to have suffered. The Judge summarised the legal test for serious harm at [22] and then focused on whether future harm feared by the appellant met the threshold but made no clear finding on whether the past ill‑treatment outlined by the appellant, occurred and if so whether it reached the serious harm threshold. That failure to resolve a primary dispute central to outcome constitutes an error of law as there has been a failure to holistically evaluate the evidence.
18. The Judge at [15] did separately however consider whether on balance, as a NABA claim the appellant had a Convention reason. The Judge found that taking the appellant’s claim at its highest he was arrested for his role in selling fake medicines. This does not resolve the issue of whether the appellant was ill-treated in detention and in turn whether that ill treatment reached the threshold of serious harm.
19. For the purposes of Article 3 and paragraph 339K it was not determinative whether the arrest was for a Convention reason. What was important was for the judge to resolve the disputed issue of the appellant’s arrest and detention which had not been accepted by the respondent. Therefore, if the Judge accepted the appellant’s claim at its highest it was also incumbent to clarify whether it was accepted that during the 2022 detention the appellant was subjected to the treatment he describes. Without such resolution the judge’s findings at [22] are not safe as he failed to consider as a relevant fact whether the appellant had suffered past persecution or serious harm and in turn whether he would be at risk of such ill treatment on a further occasion in line with paragraph 339K.
20. As to disposal having considered the parties’ submissions and bearing in mind the general principle in the Senior President’s Practice Statements para 7.2 and the guidance in AEB v SSHD [2022] EWCA Civ 1512 (see also MM (Unfairness; ER) Sudan [2014] UKUT 00105 (IAC) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)), I am satisfied that the Judge’s decision involves the making of an error of law on a core issue and the decision cannot therefore stand. No findings are preserved. Having regard to the nature and extent of the necessary fact finding the appropriate course is to set aside the decision and remit the appeal to the First‑tier Tribunal for a fresh hearing before a judge other than the original judge.

Notice of Decision
21. The decision of the First-tier Tribunal involved the making of an error on a point of law and the decision of the First-tier Tribunal is set aside.
22. The matter is to the First-tier Tribunal for a de novo rehearing before any other judge.

Signed

S Iqbal

Deputy Judge Iqbal of the Upper Tribunal
Immigration and Asylum Chamber

Date 16th March 2026